EUROPEAN COMMISSION

Brussels, 19.5.2022

COM(2022) 234 final

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS

2022 EU Justice Scoreboard

   1.    Introduction 

Effective justice systems are essential for the application and enforcement of EU law and upholding the rule of law and other values the EU is founded on and which are common to the Member States. National courts act as EU courts when applying EU law. It is national courts in the first place that ensure that the rights and obligations set in EU law are enforced effectively (Article 19 of the Treaty on European Union (TEU)).

In addition, effective justice systems are also essential for mutual trust and for improving the investment climate and the sustainability of long-term growth. This is why improving the efficiency, quality and independence of national justice systems continues to feature among the priorities of the European Semester – the EU’s annual cycle of economic policy coordination. The 2022 annual sustainable growth survey ( 1 ), which sets out the economic and employment policy priorities for the EU, confirms the link between effective justice systems and Member States’ business environment. Well-functioning and fully independent justice systems can have a positive impact on investment and are key for investment protection, and therefore contribute to productivity and competitiveness. They are also important for ensuring the effective cross-border enforcement of contracts, administrative decisions and dispute resolution, essential for the functioning of the single market ( 2 ).

In this context, the EU Justice Scoreboard gives an annual overview of indicators focusing on the essential parameters of effective justice systems:

·efficiency;

·quality;

·independence.

The 2022 Scoreboard further develops the indicators for all three aspects, including on accessibility to justice for persons with disabilities, , and again on the digitalisation of justice, which has played a major role in keeping the courts functioning during the COVID-19 pandemic, as well as more generally, to promote efficient and accessible justice systems ( 3 ).This edition strengthens the business dimension on all three aspects by including new data on administrative efficiency, legal safeguards in relation to administrative decisions and confidence in investment protection. Finally, for the first time the 2022 Scoreboard presents the effects of the COVID-19 pandemic on the efficiency of justice systems.

 The European Rule of Law Mechanism –

As announced in President von der Leyen’s political guidelines, the Commission has established a comprehensive European Rule of Law Mechanism to deepen its monitoring of the situation in Member States. The Rule of Law Mechanism acts as a preventive tool, deepening dialogue and joint awareness of rule of law issues. At the centre of the new Mechanism is the annual Rule of Law Report, which provides a synthesis of significant developments – both positive and negative – in all Member States and the Union as a whole. The 2021 Rule of Law Report, published on 20 July 2021, drew on a variety of sources, including the EU Justice Scoreboard ( 4 ). Moreover, as announced by President von der Leyen in her 2021 State of the Union Speech, the 2022 Rule of Law Report will include recommendations to Member States. The 2022 EU Justice Scoreboard has also been further developed to reflect the need for additional comparative information identified during the preparation of the 2021 Rule of Law Report, so as to support forthcoming Rule of Law reports.

2.    Context: Developments in justice reforms in 2021

In 2021, a large number of Member States continued their efforts to further improve the effectiveness of their justice systems. Figure 1 presents an updated overview of adopted and planned measures across several areas of justice systems in Member States engaged in reforming their justice systems.

Figure 1: Legislative and regulatory activity concerning justice systems in 2021 (adopted measures/initiatives under negotiation in each Member State) (source: European Commission ( 37 )) In 2021, procedural law continued to be an area of particular focus in many Member States, with a significant amount of ongoing or planned legislative activity. Reforms concerning the status of judges and the rules for legal professionals also saw significant activity. A number of Member States were in the process of introducing legislation for the use of information and communication technologies (ICT) in their justice systems. The momentum from preceding years for measures concerning the administration of courts continued in 2021. Some Member States are already actively using or planning to use artificial intelligence in their justice systems. The overview confirms the observation that justice reforms require time – sometimes several years – from their announcement, until the adoption of the legislative and regulatory measures and their implementation on the ground.

The COVID-19 pandemic has also created new challenges that highlighted the importance of accelerating reforms to digitalise the justice system. In this context, several Member States adopted new measures to ensure the regular functioning of courts, while guaranteeing the continued and easy access to justice for all, in particular through the adaptation of procedural rules. The Association of the Councils of State and Supreme Administrative Jurisdictions of the EU (ACA-Europe) developed a questionnaire examining the impact of the COVID-19 pandemic on the professional activity of the supreme courts. Respondents included the Supreme Administrative Courts and the Supreme Courts (members of the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC)). Without examining the substantive measures taken to deal with the COVID-19 pandemic, Figure 2 presents an updated overview of the changes to procedural law adopted by the Member States to facilitate judicial functions of the courts, either through new legislation, Supreme Court rulings, court regulations or practices.

Figure 2: Changes in procedural rules in Supreme Courts due to COVID-19 pandemic (source: ACA-Europe and NPSJC ( 38 ))

 (*) The data covers the period between December 2020 and December 2021. For each Member State, the left column presents the practices in Supreme Courts, and the right column presents the practices in Supreme Administrative Courts (column marked with letter ‘A’). The Member States appear in the alphabetical order of their geographical names in the original language. BE: Raad van State/Conseil d’Etat (Council of State) and Hof van Cassatie /Cour de Cassation (Supreme Court). BG: Върховен административен съд (Supreme Administrative Court). CZ: Nejvyšší správní soud (Supreme Administrative Court) and Nejvyšší soud (Supreme Court). DE: Bundesverwaltungsgericht (Federal Administrative Court). EE: Riikohus (Supreme Court). IE: Chúirt Uachtarach (Supreme Court). EL: Συμβούλιο της Επικρατείας (Council of State). ES: Tribunal Supremo (Supreme Court). FR: Conseil d’Etat (Council of State), Cour de Cassation (Supreme Court). HR: Visoki upravni (Supreme Administrative Court). IT: Consiglio de Stato (Council of State). CY: Supreme Court. LV: Augstākā tiesa (Supreme Court). LT: Vyriausiasis Administracinis Teismas (Supreme Administrative Court). LU: Cour administrative (Administrative Court) Cour de Cassation (Supreme Court). HU: Kúria (Supreme Court). MT: Court of Appeal. NL: Hoge Raad (Supreme Court), Centrale Raad van Beroep (highest administrative court in social cases), Raad van State (Council of State). AT: Verwaltungsgerichtshof (Supreme Administrative Court), Personalsenat (special evaluation panel) of the superior court, Oberster Gerichtshof (Supreme Court). PL: Naczelny Sąd Administracyjny (Supreme Administrative Court). PT: Supremo Tribunal Administrativo (Supreme Administrative Court. RO: Înalta Curte de Casație și Justiție (Supreme Court). SI: Vrhovno sodišče (Supreme Court). SK: Najvyšší súd (Supreme Court). FI: Korkein hallinto-oikeus (Supreme Administrative Courtt). SE: Högsta förvaltningsdomstolen (Supreme Administrative Court). No data from: BG: Върховен касационен съд (Supreme Court); HR: Vrhovni sud (Supreme Court); IT: Corte Suprema di Cassazione (Supreme Court); SE: Högsta domstolen (Supreme Court).

3.    Key findings of the 2022 EU Justice Scoreboard

Efficiency, quality and independence are the main parameters of an effective justice system, for all three of which the Scoreboard presents indicators.

3.1. Efficiency of justice systems

The Scoreboard presents indicators for the efficiency of proceedings in the broad areas of civil, commercial and administrative cases and in specific areas where administrative authorities and courts apply EU law ( 39 ). 

The efficiency related indicators in 2020, in particular the number of incoming cases, clearance rate and disposition time, were impacted by the specific circumstances related to the COVID-19 pandemic across the EU, which affected Member States in different ways (e.g. in terms of timing or severity) ( 40 ).

3.1.1. Developments in caseload

The caseload of national justice systems decreased in several Member States, compared to the previous year, while increasing or remaining stable in others. Overall it continues to vary considerably between Member States (Figure 3). This is testament to how important it is to remain attentive to caseload developments to ensure the effectiveness of justice systems.

Figure 3: Number of incoming civil, commercial, administrative and other cases in 2012, 2018 – 2020 (*) (1st instance/per 100 inhabitants) (source: CEPEJ study ( 41 ))

(*) Under the CEPEJ methodology, this category includes all civil and commercial litigious and non-litigious cases, non-litigious land and business registry cases, other registry cases, other non-litigious cases, administrative law cases and other non-criminal cases.

Figure 4: Number of incoming civil and commercial litigious cases in 2012, 2018 – 2020 (*) (1st instance/per 100 inhabitants) (source: CEPEJ study)

(*) Under the CEPEJ methodology, litigious civil/commercial cases concern disputes between parties, e.g. disputes about contracts. Non-litigious civil/commercial cases concern uncontested proceedings, e.g. uncontested payment orders. Methodology changes in EL and SK. Data for NL include non-litigious cases.

Figure 5: Number of incoming administrative cases in 2012, 2018 – 2020 (*) (1st instance/per 100 inhabitants) (source: CEPEJ study)

(*) Under the CEPEJ methodology, administrative law cases concern disputes between individuals and local, regional or national authorities. DK and IE do not record administrative cases separately. Removal from judicial procedure of some administrative procedures occurred in RO in 2018. Methodology changes in EL, SK and SE. In SE, migration cases have been included under administrative cases (retroactively applied for 2017).

3.1.2. General data on efficiency

The indicators on the efficiency of proceedings in the broad areas of civil, commercial and administrative cases are: (i) estimated length of proceedings (disposition time), (ii) clearance rate, and (iii) number of pending cases.

 Estimated length of proceedings –

The length of proceedings indicates the estimated time (in days) needed to resolve a case in court, meaning the time taken by the court to reach a decision at first instance. The ‘disposition time’ indicator is the number of unresolved cases divided by the number of resolved cases at the end of a year multiplied by 365 (days) ( 42 ). It is a calculated quantity that indicates the estimated minimum time that a court would need to resolve a case while maintaining the current working conditions. The higher the value, the higher is the probability that it takes the court longer to reach a decision. Figures mostly concern proceedings at first instance courts and compare, where available, data for 2012, 2018, 2019 and 2020 ( 43 ). Figures 8 and 10 show the disposition time in 2020 in civil and commercial litigious cases, and administrative cases at all court instances, while Figure 24 shows the average length of proceedings in money laundering cases at first instance courts.

Figure 6: Estimated time needed to resolve civil, commercial, administrative and other cases in 2012, 2018 – 2020 (*) (1st instance/in days) (source: CEPEJ study)

(*) Under the CEPEJ methodology, this category includes all civil and commercial litigious and non-litigious cases, non-litigious land and business registry cases, other registry cases, other non-litigious cases, administrative law cases and other non-criminal cases. Methodology changes in SK. Pending cases include all instances in CZ and, until 2016, in SK. LV: the sharp decrease is due to court system reform, error checks and data clean-ups of the information system.

Figure 7: Estimated time needed to resolve litigious civil and commercial cases at first instance in 2012, 2018 – 2020 (*) (1st instance/in days) (source: CEPEJ study)

(*) Under the CEPEJ methodology, litigious civil/commercial cases concern disputes between parties, e.g. disputes about contracts. Non-litigious civil/commercial cases concern uncontested proceedings, e.g. uncontested payment orders. Methodology changes in EL and SK. Pending cases include all instances in CZ and, up to 2016, in SK. IT: the temporary slowdown of judicial activity due to strict restrictive measures to address the COVID-19 pandemic affected the disposition time. Data for NL include non-litigious cases.

Figure 8: Estimated time needed to resolve litigious civil and commercial cases at all court instances in 2020 (*) (1st, 2nd and 3rd instance/in days) (source: CEPEJ study)

(*) The order is determined by the court instance with the longest proceedings in each Member State. No data are available for first and second instance courts in BE and BG, for second instance courts in NL, for second and third instance courts in AT or for third instance courts in DE and HR. There is no third instance court in DE and MT. IT: The temporary slowdown of judicial activity due to strict restrictive measures to address the COVID-19 pandemic affected the disposition time. Access to a third instance court may be limited in some Member States.

Figure 9: Estimated time needed to resolve administrative cases at first instance in 2012, 2018 – 2020 (*) (1st instance/in days) (source: CEPEJ study)

(*) Administrative law cases concern disputes between individuals and local, regional or national authorities, under the CEPEJ methodology. Methodology changes in EL and SK. Pending cases include courts of all instances in CZ and, until 2016, in SK. DK and IE do not record administrative cases separately. CY: in 2018, the number of resolved cases increased because cases were tried together, 2 724 consolidated cases were withdrawn and an administrative court was set up in 2015.

Figure 10: Estimated time needed to resolve administrative cases at all court instances in 2020 (*) (1st and, where applicable, 2nd and 3rd instance/in days) (source: CEPEJ study)

(*) The order is determined by the court instance with the longest proceedings in each Member State. No data available for second instance courts in BE, CZ, HU, MT, AT, RO, SI, SK and FI, for third instance courts in CY, LT, LU, MT and PL. The supreme, or other highest court, is the only appeal instance in CZ, IT, CY, AT, SI and FI. There is no third instance court for these types of cases in HR, LT, LU and MT. The highest Administrative Court is the first and only instance for certain cases in BE. Access to third instance courts may be limited in some Member States. DK and IE do not record administrative cases separately.

 Clearance rate –

The clearance rate is the ratio of the number of resolved cases over the number of incoming cases. It measures whether a court is keeping up with its incoming caseload. When the clearance rate is around 100% or higher, it means the judicial system is able to resolve at least as many cases as come in. When the clearance rate is below 100%, it means that the courts are resolving fewer cases than the number of incoming cases.

Figure 11: Rate of resolving civil, commercial, administrative and other cases in 2012, 2018 – 2020 (*) (1st instance/in % — values higher than 100 % indicate that more cases are resolved than come in, while values below 100 % indicate that fewer cases are resolved than come in) (source: CEPEJ study)

(*) Under the CEPEJ methodology, this category includes all civil and commercial litigious and non-litigious cases, non-litigious land and business registry cases, other registry cases, other non-litigious cases, administrative law cases and other non-criminal cases. Methodology changes in SK. IE: the number of resolved cases is expected to be underreported due to the methodology. IT: different classification of civil cases introduced in 2013.

Figure 12: Rate of resolving litigious civil and commercial cases in 2012, 2018 – 2020 (*) (1st instance/in %) (source: CEPEJ study)

(*) Methodology changes in EL and SK. IE: the number of resolved cases is expected to be underreported due to the methodology. IT: different classification of civil cases introduced in 2013. Data for NL include non-litigious cases.

Figure 13: Rate of resolving administrative cases in 2012, 2018 – 2020 (*) (1st instance/in %) (source: CEPEJ study)

(*) Past values for some Member States have been reduced for presentation purposes (CY in 2018 = 219%; IT in 2012=279.8%); Methodology changes in EL and SK. DK and IE do not record administrative cases separately. In CY the number of resolved cases has increased because cases were tried together, 2 724 consolidated cases were withdrawn and an administrative court was set up in 2015.

 Pending cases –

The number of pending cases expresses the number of cases that remains to be dealt with at the end of the year in question. It also affects disposition time.

Figure 14: Number of pending civil, commercial and administrative and other cases in 2012, 2018 – 2020 (*) (1st instance/per 100 inhabitants) (source: CEPEJ study)

(*) Under the CEPEJ methodology, this category includes all civil and commercial litigious and non-litigious cases, non-litigious land and business registry cases, other registry cases, other non-litigious cases, administrative law cases and other non-criminal cases. Methodology changes in SK. Pending cases include cases before courts of all instances in CZ and, until 2016, in SK. IT: different classification of civil cases introduced in 2013.

Figure 15: Number of pending litigious civil and commercial cases in 2012, 2018 – 2020 (*) (1st instance/per 100 inhabitants) (source: CEPEJ study)

(*) Methodology changes in EL and SK. Pending cases include cases before courts of all instances in CZ and, until 2016, in SK. IT: different classification of civil cases introduced in 2013. Data for NL include non-litigious cases.

Figure 16: Number of pending administrative cases in 2012, 2018 – 2020 (*) (1st instance/per 100 inhabitants) (source: CEPEJ study)

(*) Past values for some Member States have been reduced for presentation purposes (EL in 2012 = 3.5). Methodology changes in EL and SK. Pending cases include cases before courts of all instances in CZ and, until 2016, in SK. DK and IE do not record administrative cases separately.

3.1.3. Efficiency in specific areas of EU law

This section complements the general data on the efficiency of justice systems and presents the average length of proceedings ( 44 ) in specific areas of EU law. The 2022 Scoreboard builds on previous data for competition, electronic communications, the EU trademark, consumer law and anti-money laundering. The four areas have been selected because of their relevance for the single market and the business environment. Moreover, this edition provides a broader overview of efficiency of administrative authorities: two new figures on the areas of competition and electronic communications complement such data on consumer protection. In general, long delays in judicial and administrative proceedings may have negative impacts on rights stemming from EU law e.g. when appropriate remedies are no longer available or serious financial damages become irrecoverable. For business in particular, administrative delays and uncertainty in some cases can lead to significant costs and undermine planned or existing investments ( 45 ).

– Competition –

The effective enforcement of competition law is essential for an attractive business environment as it ensures a level playing field for businesses. It encourages enterprise and efficiency, creates a wider choice for consumers and helps reduce prices and improve quality. Figure 17 presents the average length of cases against the decisions of national competition authorities applying Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) ( 46 ). Figure 18 presents the average length of proceedings before the national competition authorities when applying Articles 101 and 102 of the TFEU.

Figure 17: Competition: average length of judicial review in 2013, 2018 – 2020 (*) (1st instance/in days) (source: European Commission with the European Competition Network)

(*) IE and AT: the scenario is not applicable as the authorities do not have powers to take respective decisions. AT: data include cases decided by the Cartel Court involving an infringement of Articles 101 and 102 TFEU, but not based on appeals against the national competition authority. An estimation of length was used for IT. An empty column can indicate that the Member State reported no cases for the year in question. The number of cases is low (below five a year) in many Member States. This can make the annual data dependent on one exceptionally long or short case (e.g. This is the case with MT were there was only one case).

Figure 18: Competition: average length of proceedings before the national competition authorities in 2020 (*) (in days) (source: European Commission with the European Competition Network)

(*) In some Member States the number of cases is limited. BE: Data includes one cartel decision – 1 045 days and five interim measures. Total average length of all six proceedings – 2 015 days. IT: Proceedings I833 – Gare Consip per acquisizione beni e servizi per informatica e telecomunicazioni – launched by the Italian Competition Authority under Article 101 TFEU, are not taken into account, because at the end of the proceedings it did not find any breaches of Article 101 TFEU. It must be taken into account that some Member States count the days for the length of proceedings from different starting points. Most Member States consider a case open when the investigation is open. In the NL, the case is considered open when the Statement of Objection is sent, while in CZ and SK a case is considered open when the administrative proceedings open. In the latter case, this is an intermediate phase between the opening of the investigation and the sending of the Statement of Objection. There are also a number of factors to take into account when it comes to the length of proceedings before the national competition authorities. These include the nature and complexity of the case, the time it takes to collect the economic data and the conclusion of the economic analysis, the deadline extensions at the requests of the parties, and the repetition of hearings.

– Electronic communications –

The objective of EU electronic communications legislation is to raise competition, to contribute to the development of the single market and to generate investment, innovation and growth. The positive effects for consumers can be achieved through effective enforcement of this legislation which can lead to lower prices for end users and better quality services. Figure 19 presents the average length of judicial review cases against the decisions of national regulatory authorities applying EU law on electronic communications ( 47 ). It covers a broad range of cases, ranging from more complex ‘market analysis’ reviews to more straightforward consumer-focused issues. Figure 20 presents the average length of proceedings before the national regulatory authorities when applying EU law.

Figure 19: Electronic communications: average length of judicial review in 2013, 2018 – 2020 (*) (1st instance/in days) (source: European Commission with the Communications Committee)

(*) The number of cases varies from one Member State to another. An empty column indicates that the Member State reported no cases for the year (except PT for 2019-20, and RO no data). In some instances, the limited number of relevant cases (BG, CY, MT, NL, SK, FI, SE) can make the annual data dependent on one exceptionally long or short case and result in wide variations from one year to the next. DK: quasi-judicial body in charge of 1st instance appeals. EE: The average length of judicial review cases in 2013 was 18 days. ES, AT, and PL: different courts in charge depending on the subject matter.

Figure 20: Electronic communications: average length of proceedings before the National Regulatory Authority in 2015, 2018 – 2020 (in days) (source: European Commission with the Communications Committee)

– EU trademark –

Effective enforcement of intellectual property rights is essential to stimulate investment in innovation. EU legislation on EU trademarks ( 48 ) gives the national courts a significant role to play, in acting as EU courts and taking decisions that affect the single market. Figure 21 shows the average length of EU trademark infringement cases in litigation between private parties.

Figure 21: EU trademark: average length of EU trademark infringement cases in 2013, 2018 – 2020 (*) (1st instance/in days) (source: European Commission with the European Observatory on infringements of intellectual property rights)

(*) FR, IT, LT, LU: a sample of cases used for data for certain years. DK: data from all trademark cases (not only EU) in Commercial and Maritime High Courts; for 2018 and 2019, no data on average length due to changes in data collection system. EL: data based on weighted average length from two courts. ES: cases concerning other EU IP titles are included in the calculation of average length.

– Consumer protection –

Effective enforcement of consumer law ensures that consumers benefit from their rights and that companies infringing consumer laws do not gain an unfair advantage. Consumer protection authorities and courts play a key role in enforcing EU consumer law ( 49 ) within the various national enforcement systems. Figure 22 illustrates the average length of judicial review cases against decisions of consumer protection authorities applying EU law.

For consumers or companies, effective enforcement can involve a chain of actors, not only courts but also administrative authorities. To shed more light on this enforcement chain, the length of proceedings by consumer authorities is presented. Figure 23 shows the average length of time it took for administrative decisions by national consumer protection authorities in 2014, 2018-2020 from the moment a case is opened. Relevant decisions include declaring infringements of substantive rules, interim measures, cease and desist orders, initiation of court proceedings or case closure.

Figure 22: Consumer protection: average length of judicial review in 2013, 2018 – 2020 (*) (1st instance/in days) (source: European Commission with the Consumer Protection Cooperation Network)

(*) DE, LU, AT: scenario is not applicable as consumer authorities are not empowered to decide on infringements of relevant consumer rules. The number of relevant cases for 2020 is low (fewer than five) in IE and FI. An estimate of average length was provided by EL and RO for certain years.

Figure 23: Consumer protection: average length of administrative decisions by consumer protection authorities in 2014, 2018 – 2020 (*) (1st instance/in days) (source: European Commission with the Consumer Protection Cooperation Network)

(*) DE, LU, AT: scenario is not applicable as consumer authorities are not empowered to decide on infringements of relevant consumer rules. An estimate of average length was provided by DK, EL, FR, RO and FI for certain years.

– Money laundering –

In addition to contributing to the fight against crime, the effectiveness of the fight against money laundering is crucial for the soundness, integrity and stability of the financial sector, confidence in the financial system and fair competition in the single market ( 50 ). Money laundering can discourage foreign investment, distort international capital flows and negatively affect a country’s macroeconomic performance, resulting in welfare losses, thereby draining resources from more productive economic activities ( 51 ). The Anti-money Laundering Directive requires Member States to maintain statistics on the effectiveness of their systems to combat money laundering or terrorist financing ( 52 ). In cooperation with Member States, an updated questionnaire was used to collect data on the judicial stages in national anti-money laundering regimes. Figure 24 shows the average length of first instance court cases dealing with money laundering criminal offences.

Figure 24: Money laundering: average length of court cases in 2014, 2018 – 2020(*) (1st instance/in days) (source: European Commission with the Expert Group on Money Laundering and Financing of Terrorism)

(*) No data for 2020: BE, DE, EE, IE, HR, PL and PT. BG: The average length of the cases is calculated from the day of opening the court case to the day of the court decision in months. ES, NL: estimated length. CZ: Length in months. HU: Average number of days was calculated based only on the number of cases resolved with a conviction. PT: Average number of days was calculated based on a sample. IT: data refer to both trial and preliminary court hearings. CY: Serious cases, before the Assize Court, are on average tried within a year. Less serious offences, before the District Courts, take longer to be tried. SK*: data correspond to average length of the whole proceedings, including at appeal court.

3.2. Quality of justice systems

There is no single way of measuring the quality of justice systems. The 2022 EU Justice Scoreboard continues to examine factors that are generally accepted as relevant for improving the quality of justice. They fall into four categories:

1) accessibility of justice for citizens and businesses;

2) adequate financial and human resources;

3) putting in place of assessment tools;

4) digitalisation.

3.2.1. Accessibility

Accessibility is required throughout the whole justice chain to enable people to obtain relevant information – about the justice system, about how to initiate a claim and the related financial aspects, about the state of play of proceedings up until their end – and to access the judgment online.

– Legal aid, court fees and legal fees –

The cost of litigation is a key factor that determines access to justice. High litigation costs, including court fees ( 55 ) and legal fees ( 56 ), may hinder access to justice. Litigation costs in civil and commercial matters are not harmonised at EU level. Governed by national legislation, they vary from one Member State to another.

Access to legal aid is a fundamental right enshrined in the Charter of Fundamental Rights of the EU ( 57 ). It allows access to justice to people who would not otherwise be able to bear or advance the costs of litigation. Most Member States grant legal aid based on the applicant’s income ( 58 ).

Figure 25 shows the availability of full or partial legal aid in a specific consumer case involving a claim of EUR 6 000. It compares the income thresholds for granting legal aid, expressed as a percentage of the Eurostat poverty threshold for each Member State ( 59 ). For example, if the threshold for legal aid appears to be at 20%, it means that an applicant with an income 20% higher than the Eurostat poverty threshold for their Member State will still be eligible for legal aid. However, if the threshold for legal aid appears to be below 0, this means that a person with an income below the poverty threshold may not be eligible for legal aid.

Some Member States operate a legal aid system that provides for 100% coverage of the costs linked to litigation (full legal aid), complemented by a system covering partial costs (partial legal aid), the latter applying eligibility criteria different from that of the former. Other Member States operate only a full or partial legal aid system.

Figure 25: Income threshold for legal aid in a specific consumer case, 2021 (*) (differences in % from Eurostat poverty threshold) (source: European Commission with the Council of Bar and Law Societies in Europe (CCBE) ( 60 ))

(*) EE: decision to grant legal aid is not based on the level of the applicant’s financial resources. IE: legal aid has to also take into account the applicant’s disposable assets. CY: 2020 data. MT: 2020 data. LV: thresholds vary by municipality; the chart shows the upper limit. PT: the granting of legal aid is a decision taken by the public administration (P.A. in the figure), with the Social Security Ministry assessing the applicant’s financial conditions under the law. RO: 2020 data.

Most Member States require parties to pay a court fee when starting judicial proceedings. Recipients of legal aid are often exempt from paying court fees. Only in Bulgaria, Estonia, Ireland, the Netherlands, Poland and Slovenia are recipients of legal aid not automatically exempt from paying court fees. In Czechia, the court decides on a case-by-case basis whether or not to exempt a legal aid recipient from paying court fees. In Luxembourg, litigants who benefit from legal aid do not have to pay bailiff fees. Figure 26 compares, for two scenarios, the amount of the court fee presented as a proportion of the value of the claim. If, for example, in the figure below the court fee appears to be 10% of a EUR 6 000 claim, the consumer will have to pay a EUR 600 court fee to start judicial proceedings. The low value claim is based on the Eurostat at-risk-of-poverty (AROP) threshold for each Member State.

Figure 26: Court fee to start judicial proceedings in a specific consumer case, 2021 (*) (amount of court fee as a proportion of the value of the claim) (source: European Commission with the Council of Bar and Law Societies in Europe (CCBE) ( 61 ))

(*) ‘Low value claim’ is a claim corresponding to the Eurostat poverty threshold for a single person in each Member State, converted to monthly income (e.g. in 2019, this value ranged from EUR 193 in RO to EUR 1 824 in LU). ES, PT: no data provided. BG, RO: 2020 data for court fee for a EUR 6 000 claim. No information on court fees for a low value claim was provided. CY: 2020 data. LU: Litigants have to pay bailiff fees to start proceedings as a plaintiff unless they benefit from legal aid. MT: 2020 data. NL: Court fees for income < EUR 2 383/month. AT: The maximum amount of the court fee depends on the court’s instance. SE: Court fees differ in civil matters depending on the type of case. For disputes where the value of the claim is < EUR 2 339, the court fee is EUR 88. In cases where the value of the claim is > EUR 2 339, the court fee is EUR 275. For other types of claims there are other court fees.

Efficient contract enforcement is essential for the economy. The likelihood of recovering the actual costs of litigation strengthens the position of a creditor seeking to enforce a contract. Typically, the creditor, as plaintiff, is required to pay a court fee for filing a case with the court. The courts generally order the defendant who loses to reimburse in full the court fees advanced by the plaintiff who has won. Figure 27 shows the amount of the court fee required to start judicial proceedings in a specific commercial case concerning a dispute between two companies in cross-border commercial litigation on enforcing a contract, with a claim value of EUR 20 000.

Figure 27: Court fee to start judicial proceedings in a specific commercial case, 2021 (*) (in EUR) (source: European Commission with the CCBE ( 62 ))

(*) CY, LU, MT, PL, RO: 2020 data. EL, ES: Recovery of court fees is decided on a case-by-case basis. HU: There is no full recovery of court fees by the winning party.

It is common for the creditor to advance their own lawyer’s fees not only for the litigious phase but also during the pre-litigious phase. On reimbursement, most Member States apply the rule according to which the losing party is expected to bear not only their own legal costs, but also those of the winning party. This rule deters the filing of cases where there is a low probability of winning, but encourages the filing of cases where there is a high probability of winning. Figure 28 shows the amount the court would award to the successful plaintiff in a specific commercial case scenario (footnote 62).

Three main fee systems can be distinguished:

(1) in Member States with a statutory fee system, the reimbursement of legal fees depends on the level of the statutory fee for the work carried out by the lawyer, which varies significantly from one Member State to another;

(2) in Member States without a statutory fee system, there is either full (Portugal, Finland) or partial (Latvia, Luxembourg) reimbursement of legal fees;

(3) in a number of Member States the issue of reimbursement is decided by the court on a case-by-case basis.

Figure 28: Recoverability of legal fees in a commercial trial, 2021 (*) (in EUR) (source: European Commission with the Council of Bar and Law Societies in Europe (CCBE) ( 63 ))

(*) For this figure, legal fees do not include clerical costs and VAT, if payable. The hypothetical legal fee for the litigious phase provided for in the scenario is EUR 1 650. Full recovery in systems without a statutory fee means that this amount (EUR 1 650) can be recovered. Member States with partial recovery (LV, LU) are sorted by order of the recoverable legal fee (highest to lowest, with amounts ranging from EUR 2 200 to EUR 660). The figure does not include information on the recoverability of legal fees for the pre-litigious phase, because this is not envisaged in all Member States. IT: there is a statutory fee in IT (EUR 3 235 in the scenario), but the court can decide on reimbursement within a set range. LT: the court decides, taking into account guidance from the Ministry of Justice. The maximum amount in the scenario would be EUR 3 350. HU: There are two scenarios: the court could order a full recovery of legal fees by the winning party, based on the legal fee arrangement between the lawyer and the client; the court could take into account the statutory legal fee system and order only a partial recovery of legal fees by the winning party, despite the arrangement between the lawyer and the client. MT: there is no concept of an hourly legal fee in MT, reimbursement is determined based on the value of the claim. AT: scenario not fully applicable to AT’s system of reimbursement. PL: The minimum amount of fees is determined by law and they are dependent on the value of the subject matter of the dispute. The court could decide to wave the fee or to order payment of the minimum fee (in case the fee is increased due to specific circumstances as set out in the relevant legislation).

– Accessing alternative dispute resolution methods –

Figure 29 shows Member States’ efforts to promote the voluntary use of alternative dispute resolution (ADR) methods with specific incentives. These may vary depending on the area of law ( 64 ).

Figure 29: Promotion of and incentives for using ADR methods, 2021 (*) (source: European Commission ( 65 ))

(*) Maximum possible: 68 points. Aggregated indicators based on the following indicators: 1) website providing information on ADR; 2) media publicity campaigns; 3) brochures for the general public; 4) provision by the court of specific information sessions on ADR upon request; 5) court ADR/mediation coordinator; 6) publication of evaluations on the use of ADR; 7) publication of statistics on the use of ADR; 8) partial or full coverage by legal aid of costs ADR incurred; 9) full or partial refund of court fees, including stamp duties, if ADR is successful; 10) no requirement for a lawyer for ADR procedures; 11) judge can act as a mediator; 12) agreement reached by the parties becomes enforceable by the court; 13) possibility to initiate proceedings/file a claim and submit documentary evidence online; 14) parties can be informed of the initiation and different steps of procedures electronically; 15) possibility of online payment of applicable fees; 16) use of technology (artificial intelligence applications, chat bots) to facilitate the submission and resolution of disputes; and 17) other means. For each of these 17 indicators, one point was awarded for each area of law. IE: administrative cases fall into the category of civil and commercial cases. EL: ADR exists in public procurement procedures before administrative courts of appeal. ES: ADR is mandatory in labour law cases. PT: for civil/commercial disputes, court fees are refunded only in the case of justices for peace. SK: the Slovak legal order does not support the use of ADR for administrative purposes. FI: consumer and labour disputes are also considered to be civil cases. SE: judges have procedural discretion on ADR. Seeking an amicable dispute settlement is a mandatory task for the judge unless it is inappropriate due to the nature of the case.

– Specific arrangements for access to justice of persons with disabilities –

As Parties to the UN Convention on the Rights of Persons with Disabilities ( 66 ), the EU and all its Member States are obliged to ensure persons with disabilities have effective equal access to justice by ensuring appropriate accommodation with the aim to equality and non-discrimination. State parties should also provide accessibility, including communication and information as well as reaffirm their right to equal recognition before the law. Figure 30 shows selected specific arrangements in this regard, such as the availability of information in accessible formats, the availability upon request of specific formats, or the accessibility for people with disabilities of digital solutions for civil and commercial cases, administrative cases and criminal cases before first instance courts.

Figure 30: Specific arrangements for access to justice of persons with disabilities, 2021 (source: European Commission ( 67 ))

– Judicial control over public administration in business-related scenarios –

For the first time, the 2022 EU Justice Scoreboard provides an overview of selected legal safeguards regarding acts or omissions of administrative authorities in business-related scenarios 68 . Relevant safeguards include the court review of administrative decisions and interim measures, or possibility for financial compensation in the case of administrative silence or an ill-founded decision. All of these contribute to the quality of the justice system, of particular relevance for the business and investment environment and the functioning of the single market.

Figure 31: Legal safeguards regarding decisions or inaction of administrative authorities, 2021 (*) (source: European Commission ( 69 ))

– Child-friendly justice – 

The 2022 EU Justice Scoreboard deepens the analysis of child friendly-justice compared to previous editions. Figure 32 shows the various arrangements in Member States that make a justice system more suited to the needs of children. Figure 33 looks at specific arrangements available when a child is involved as a victim or as a suspect/accused person.

Figure 32: Specific arrangements for child-friendly proceedings, 2021 (*) (Civil and criminal/juvenile justice and administrative proceedings), (source: European Commission ( 70 ))

(*) Children: persons under 18 years of age. Data for MT on training for judges are for 2020.

Figure 33: Specific arrangements for child-friendly proceedings with children involved as victims or suspects or as accused persons, 2021 (*) (source: European Commission ( 71 ))

(*) Children: persons under 18 years of age.

3.2.2. Resources

Sufficient resources, including the necessary investments in physical and technical infrastructure, and well qualified, trained and adequately paid staff of all kinds, are necessary for the justice system to work properly. Without adequate facilities, tools or staff with the required qualifications, skills and access to continuous training, the quality of proceedings and decisions is undermined.

– Financial resources –

The figures below show the actual government expenditure on the operation of the justice system (excluding prisons), both per inhabitant (Figure 34) and as a proportion of gross domestic product (GDP) (Figure 35).

Figure 34: General government total expenditure on law courts in EUR per inhabitant, 2012, 2018 – 2020 (*) (source: Eurostat)

(*) Member States are ordered according to their expenditure in 2020 (from highest to lowest). The following data are provisional: DE (2018-2020), ES (2020), FR (2019-2020), IT (2020) and PT (2020).

Figure 35: General government total expenditure on law courts as a percentage of GDP, 2012, 2018 – 2020 (*) (source: Eurostat)

(*) Member States are ordered according to their expenditure in 2020 (from highest to lowest). The following data are provisional: DE (2018-2020), ES (2020), FR (2019-2020), IT (2020) and PT (2020).

– Human resources –

Adequate human resources are essential for the quality of a justice system. Diversity among judges, including gender balance, adds complementary knowledge, skills and experience and reflects the reality of society.

Figure 36: Number of judges, 2012, 2018 – 2020 (*) (per 100 000 inhabitants) (source: Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ) study)

(*) This category consists of judges working full-time, in accordance with the CEPEJ methodology. It does not include the Rechtspfleger/court clerks that exist in some Member States. AT: data on administrative justice have been part of the data since 2016. EL: since 2016, data on the number of professional judges include all the ranks for criminal and civil justice as well as administrative judges. IT: Regional audit commissions, local tax commissions and military courts are not taken into consideration. Administrative justice has been taken into account since 2018.

Figure 37: Proportion of female professional Supreme Court judges 2019 – 2021 (*) (source: European Commission ( 72 ))

(*) The data are sorted by 2020 values, from the highest to the lowest. MT: No women on the highest court in 2019 and 2020.

Figure 38: Number of lawyers, 2012, 2018 – 2020 (*) (per 100 000 inhabitants) (source: Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ) study)

(*) In accordance with the CEPEJ methodology, a lawyer is a person qualified and authorised by national law to plead and act on behalf of their clients; to engage in the practice of law; to appear before the courts or advise and represent their clients in legal matters (Recommendation Rec (2000)21 of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer). DE: no distinction is made between different groups of lawyers in Germany, such as between solicitors or barristers. FI: since 2015, the number of lawyers provided includes both the number of lawyers working in the private sector and the number of lawyers working in the public sector. 

– Training –

Judicial training makes an important contribution to the quality of judicial decisions and the justice service delivered to citizens. The data set out below cover judicial training in a broad range of areas, including communication with parties and the press and judicial skills.

Figure 39: Availability of training in communication for judges, 2021 (*) (source: European Commission ( 73 ))

(*) Maximum possible: 16 points. Member States were given 1 point if they have initial training and 1 point if they have continuous training (maximum of 2 points for each type of training). MT: 2020 data.

3.2.3. Assessment tools

Regular evaluation could make the justice system more responsive to current and future challenges, thereby improving its quality. Surveys (Figure 40) are essential for assessing how justice systems operate from the perspective of legal professionals and court users.

Figure 40: Topics of surveys conducted among court users or legal professionals, 2019 (*) (source: European Commission ( 74 ))

(*) Member States were given one point per survey topic indicated regardless of whether the survey was conducted at national, regional or court level. ‘Other topics’ include a survey among litigants about their opinion on the new ways of improving the quality of customer service in the courts and the accessibility of the courts service (FR), a survey among judges on topics such as the general situation of the justice system, their function and judicial independence (ES), assistance provided to crime victims (PL), general aspects of courts and their functioning, access to information about courts, court facilities, judge responsible for the process, resources, loyalty (PT).

3.2.4. Digitalisation

The use of information and communication technologies (ICT) can strengthen the Member States’ justice systems and make them more accessible, efficient, resilient and ready to face current and future challenges. The COVID-19 pandemic has also adversely impacted national justice systems and has highlighted a number of challenges affecting the functioning of the judiciary. At the same time, it showed the need for the national justice systems to further improve their digitalisation.

Earlier editions of the EU Justice Scoreboard provided comparative data on certain aspects of the ICT in justice systems. As announced in the Commission’s Communication on the digitalisation of justice in the EU of 2 December 2020 ( 75 ), the Scoreboard has been substantially augmented with further data on digitalisation in the Member States. This should allow for more in-depth monitoring of progress areas and outstanding challenges.

Citizen-friendly justice requires that information about national judicial systems is not only easily accessible but is also tailored to specific groups of society that would otherwise have difficulties in accessing the information. Figure 41 shows the availability of online information and specific public services that can help people access justice.

Figure 41: Availability of online information about the judicial system for the general public, 2021 (*) (source: European Commission ( 76 ))

(*) DE: Each federal state as well as the federal level decide individually which information to provide online.

– Digital-ready rules –

The use of digital solutions in civil/commercial, administrative and criminal cases often requires appropriate regulation in national procedural rules. Figure 42 illustrates the possibility for various actors to use distance communication technology (such as videoconferencing) for procedures related to court cases, and reflects the current situation on the admissibility of digital evidence.

Figure 42: Procedural rules allowing digital technology in courts in civil/commercial, administrative and criminal cases, 2021 (*) (source: European Commission ( 77 ))

(*) For each Member State, the first column presents procedural rules for civil/commercial cases, the second column for administrative cases and the third column for criminal cases. Maximum possible: 12 points. For each criterion, two points were given if the possibility exists in all civil/commercial, administrative and criminal cases, respectively (in criminal cases, the possibility of hearing the parties was split to cover both defendants and victims). The points are divided by two when the possibility does not exist in all cases. For those Member States that do not distinguish between civil/commercial and administrative cases, the same number of points has been given for both areas. EL: none for administrative and criminal cases. LU: none for administrative cases.

– Use of digital tools –

Beyond digital-ready procedural rules, courts and prosecution services need to have appropriate tools and infrastructure in place for distance communication and secure remote access to the workplace (Figure 43). Adequate infrastructure and equipment is also needed for secure electronic communication between courts/prosecution services and legal professionals and institutions (Figures 44 and 45).

ICT, including innovative technology, plays an important role in supporting the work of judicial authorities. It therefore contributes significantly to the quality of justice systems. The availability of various digital tools at the disposal of judges, prosecutors and judicial staff can streamline work processes, ensure fair workload allocation and lead to a significant time reduction.

Figure 43: Use of digital technology by courts and prosecution services, 2021 (*) (source: European Commission ( 78 ))

(*) Maximum possible: 7 points. For each criterion, one point was given if courts and prosecution services, respectively, use a given technology and 0.5 point was awarded when the technology is not always used by them.

Secure electronic communication can contribute to improving the quality of justice systems. The possibility for courts to communicate electronically between themselves, as well as with legal professionals and other institutions, can streamline processes and reduce the need for paper-based communication and physical presence, which would lead to a reduction in the length of pre-trial activities and court proceedings.

Figure 44: Courts: electronic communication tools, 2021 (*) (source: European Commission ( 79 ))

(*) Maximum possible: 5 points. For each criterion, one point was given if secure electronic communication is available for courts. 0.5 was awarded when the possibility does not exists in all cases. FI: the tasks of notaries do not relate to courts. Therefore, there is no reason to provide them with secure connection.

Prosecution services are essential for the functioning of the criminal justice system. They also stand to benefit from access to a secure electronic channel of communication, which could facilitate their work and thus improve the quality of court proceedings. The possibility for secure electronic communication between prosecution services and investigating authorities, defence lawyers and courts would enable a more expedient and efficient preparation of the proceedings before the court.

Figure 45: Prosecution service: electronic communication tools, 2021(*) (source: European Commission ( 80 ))

(*) Maximum possible: 5 points. For each criterion, one point was given if secure electronic communication is available for prosecution services. 0.5 was awarded when the possibility does not exist in all cases. Availability of electronic communication tools within prosecution service includes communication with lawyers employed by the prosecution service.

– Online access to courts –

The ability to carry out specific steps in a judicial procedure electronically is an important aspect of the quality of justice systems. The electronic submission of claims, the possibility to monitor and advance a proceeding online or serve documents electronically can tangibly facilitate access to justice for citizens and businesses (or their legal representatives) and reduce delays and costs. The availability of such digital public services would help bring courts one step closer to citizens and businesses, and by extension increase public trust in the justice system.

Figure 46: Digital solutions to initiate and follow proceedings in civil/commercial and administrative cases, 2021(*) (source: European Commission ( 81 ))

(*) Maximum possible: 9 points. For each criterion, one point was given if the possibility exists in all civil/commercial and administrative cases, respectively. 0.5 point was awarded when the possibility does not exist in all cases. For those Member States that do not distinguish civil/commercial and administrative cases, the same number of points has been given for both areas.

The use of digital tools for conducting and following court proceedings in criminal cases, can also help guarantee the rights of victims and defendants. For example, digital solutions can enable confidential remote communication between defendants and their lawyers, allow defendants in detention to prepare for their hearing and help victims of crime avoid secondary victimisation.

Figure 47: Digital solutions to conduct and follow court proceedings in criminal cases, 2021(*) (source: European Commission ( 82 ))

(*) Maximum possible: 6 points. For each criterion, one point was given if the possibility exists in all criminal cases. 0.5 point was awarded when the possibility does not exists in all cases.

– Access to judgments –

Ensuring online access to judgments increases the transparency of justice systems, helps citizens and businesses understand their rights and can contribute to consistency in case-law. The arrangements for publishing judicial decisions online are essential for creating user-friendly search facilities ( 83 ) that make case-law more accessible to legal professionals and the general public. Seamless access to and easy reuse of case-law makes the justice system algorithm-friendly, enabling innovative ‘legal tech’ applications that support practitioners.

The online publication of court decisions requires balancing a variety of interests, within the boundaries set by legal and policy frameworks. The General Data Protection Regulation ( 84 ) fully applies to the processing of personal data by courts. When assessing what data to make public, a fair balance has to be struck between the right to data protection and the right to publicise court decisions to ensure the transparency of the justice system. This is particularly true when there is a prevailing public interest that justifies the disclosure of those data. In many countries, the law or practice requires the anonymisation or pseudonymisation ( 85 ) of judicial decisions before publication, either systematically or upon request. Data produced by the judiciary are also governed by EU legislation on open data and the reuse of public sector information ( 86 ).

The availability of judicial decisions in a machine-readable format ( 87 ) facilitates an algorithm-friendly justice system ( 88 ).

Figure 48: Online access to published judgments by the general public, 2021 (*) (civil/commercial, administrative and criminal cases, all instances) (source: European Commission ( 89 ))

(*) Maximum possible: 9 points. For each court instance, one point was given if all judgments are available for civil/commercial and administrative and criminal cases respectively, 0.75 points when most judgments (more than 50% are available) and 0.5 points when some judgments (less than 50%) are available. For Member States with only two court instances, points have been given for three court instances by mirroring the respective higher instance court of the non-existing instance. For those Member States that do not distinguish the two areas of law (civil/commercial and administrative), the same number of points has been given for both areas. BE: for civil and criminal cases, each court is in charge of deciding on the publication of its own judgments. DE: each federal state decides on online availability of first instance judgments. AT: for first and second instance, judges decide which judgments are published. Decisions of the Supreme Court that reject an appeal without substantial reasoning are not published. Decisions of the Supreme Administrative Court taken by a single judge are published if the judge concerned decides to publish them. Furthermore, decisions only containing legal issues where there already is continuous jurisprudence of the Supreme Administrative Court and non-complicated decisions concerning discontinuance of proceedings are not published. NL: courts decide on publication according to published criteria. PT: a commission within the court decides on the publication. SI: procedural decisions with little or no significance for the case-law are not published; from decisions in cases, which are identical in substance (e.g. bulk cases), only the leading decision is published (together with the list of case files with the same content). Individual higher courts decide which judgments can be published. SK: decisions on several types of civil cases, such as in inheritance matters or determining of paternity are not published. FI: courts decide which judgments are published.

Figure 49: Arrangements for producing machine-readable judicial decisions, 2021 (*) (civil/commercial, administrative and criminal cases, all instances) (source: European Commission ( 90 ))

(*) Maximum possible: 24 points per type of case. For each of the three instances (first, second, final) one point can be given if all judicial decisions are covered. If only some judicial decisions are covered at a given instance, only half a point is awarded. Where a Member State has only two instances, points have been given for three instances by mirroring the respective higher instance as the non-existing instance. For those Member States that do not distinguish between administrative and civil/commercial cases, the same points have been allocated for both areas of law. ES: The use of the General Council for the Judiciary (CGPJ) database for commercial purposes, or the massive download of information is not allowed. The reuse of this information for developing databases or for commercial purposes must follow the procedure and conditions established by the CGPJ through its Judicial Documentation Centre. IE: anonymisation of judgments is done in family law, child care and other areas where statute requires or a judge directs the identities of parties or persons not to be disclosed.

(1)      COM(2021) 740 final.

(2)      See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Identifying and addressing barriers to the Single Market, COM(2020)93, and accompanying SWD(2020)54.

(3)      See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Digitalisation of justice in the European Union: A toolbox of opportunities, COM(2020)710, and accompanying SWD(2020)540.

(4)       https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/rule-law-mechanism/2021-rule-law-report/2021-rule-law-report-communication-and-country-chapters_en

(5)      E.g. European Parliament resolution of 29 May 2018 on the 2017 EU Justice Scoreboard (P8_TA(2018)0216).

(6)       https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/eu-justice-scoreboard_en

(7)      To help prepare the EU Justice Scoreboard and promote the exchange of best practice on the effectiveness of justice systems, the Commission asked Member States to designate two contact persons, one from the judiciary and one from the ministry of justice. This informal group meets regularly.

(8)      The ENCJ brings together Member States’ national institutions that are independent of the executive and legislature, and are responsible for supporting the judiciary in the independent delivery of justice: https://www.encj.eu/

(9)      The NPSJC provides a forum that gives European institutions the opportunity to request the opinions of supreme courts, and brings them closer by encouraging discussion and the exchange of ideas: http://network-presidents.eu/

(10)      ACA-Europe is composed of the Court of Justice of the EU and the Councils of State or the Supreme administrative jurisdictions of each EU Member State: http://www.juradmin.eu/index.php/en/

(11)      CCBE represents European bars and law societies in their common interests before European and other international institutions. It regularly acts as a liaison between its members and the European institutions, international organisations, and other legal organisations around the world: https://www.ccbe.eu/  

(12)      The ECN has been established as a forum for discussion and cooperation between European competition authorities in cases where Articles 101 and 102 of the Treaty on the Functioning of the EU (TFEU) are applied. The ECN is the framework for the close cooperation mechanisms of Council Regulation 1/2003. Through the ECN, the Commission and the national competition authorities in all EU Member States cooperate with each other: http://ec.europa.eu/competition/ecn/index_en.html

(13)      The COCOM is composed of EU Member State representatives. Its main role is to provide an opinion on the draft measures that the Commission intends to adopt on digital market issues: https://ec.europa.eu/digital-single-market/en/communications-committee

(14)      The European Observatory on Infringements of Intellectual Property Rights is a network of experts and specialist stakeholders. It is composed of public and private sector representatives, who collaborate in active working groups: https://euipo.europa.eu/ohimportal/en/web/observatory/home  

(15)      The CPC is a network of national authorities responsible for enforcing EU consumer protection laws in EU and EEA countries: http://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/consumer_protection_cooperation_network/index_en.htm  

(16)      The EGMLTF meets regularly to share views and help the Commission define policy and draft new anti-money laundering and counter-terrorist financing legislation: http://ec.europa.eu/justice/civil/financial-crime/index_en.htm

(17)      Eurostat is the statistical office of the EU: http://ec.europa.eu/eurostat/about/overview

(18)      The EJTN is the principal platform and promoter for the training and exchange of knowledge of the European judiciary: https://www.ejtn.eu/en/      

(19)      In the context of the European Semester, the Council, on the basis of the Commission’s proposal, addressed country-specific recommendations on their justice systems to seven Member States in 2019 (HR, IT, CY, HU, MT, PT and SK) and eight Member States in 2020 (HR, IT, CY, HU, MT, PL, PT and SK). The Commission also monitors judicial reforms in BG and RO under the Cooperation and Verification Mechanism. There were no country-specific recommendations in 2021 due to the ongoing RRF processes.

(20)      Article 19(3)(b) and Article 24(3) and (5) of Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility, OJ L 57, 18.2.2021, p. 17.

(21)      IMF, Regional Economic Outlook, November 2017, Europe: Europe Hitting its Stride, p. xviii, pp. 40, 70: https://www.imf.org/~/media/Files/Publications/REO/EUR/2017/November/eur-booked-print.ashx?la=en  

(22)      ECB, ‘Structural policies in the euro area’, June 2018, ECB Occasional Paper Series No 210: https://www.ecb.europa.eu/pub/pdf/scpops/ecb.op210.en.pdf?3db9355b1d1599799aa0e475e5624651  

(23)      European Network of Councils for the Judiciary and the Montaigne Centre for the Rule of Law and Administration of Justice of Utrecht University, ‘Economic value of the judiciary – A pilot study for five countries on volume, value and duration of large commercial cases’, June 2021: https://pgwrk-websitemedia.s3.eu-west-1.amazonaws.com/production/pwk-web-encj2017-p/Reports/Economic%20value%20of%20te%20judiciary%20-%20pilot%20study.pdf  

(24)      See e.g. ‘What makes civil justice effective?’ OECD Economics Department Policy Notes, No. 18, June 2013 and ‘The Economics of Civil Justice: New Cross-Country Data and Empirics’, OECD Economics Department Working Papers, No. 1060.

(25)      World Economic Forum, ‘The Global Competitiveness Report 2019’, October 2019: https://www.weforum.org/reports/global-competitiveness-report-2019  

(26)      World Bank, ‘World Development Report 2017: Governance and the Law, Chapter 3: The role of law’, pp. 83, 140: http://www.worldbank.org/en/publication/wdr2017  

(27)      The ‘disposition time’ indicator is the number of unresolved cases divided by the number of resolved cases at the end of a year multiplied by 365 (days). It is a standard indicator developed by the Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ): http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp

(28)      Vincenzo Bove and Leandro Elia, ‘The judicial system and economic development across EU Member States’, JRC Technical Report, EUR 28440 EN, Publications Office of the EU, Luxembourg, 2017: http://publications.jrc.ec.europa.eu/repository/bitstream/JRC104594/jrc104594__2017_the_judicial_system_and_economic_development_across_eu_member_states.pdf

(29)      Idem.

(30)      ‘Effect of judicial independence on foreign direct investment in Eastern Europe and South Asia’, Bülent Dogru, 2012, MPRA Munich Personal RePEc Archive: https://mpra.ub.uni-muenchen.de/40471/1/MPRA_paper_40322.pdf . EU Member States included in the study were: BG, HR, CZ, EE, HU, LV, LT, RO, SK and SI.

(31)      The Economist Intelligence Unit, ‘Risk and Return – Foreign Direct Investment and the Rule of Law’, 2015 http://www.biicl.org/documents/625_d4_fdi_main_report.pdf , p. 22.

(32)      EU Intellectual Property Office (EUIPO), Intellectual Property (IP) SME Scoreboard 2016: https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/sme_scoreboard_study_2016/Executive-summary_en.pdf

(33)      COM(2020)93 and SWD(2020)54.

(34)      Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Long term action plan for better implementation and enforcement of single market rules, COM(2020)94, in particular actions 4, 6 and 18.

(35)       https://ec.europa.eu/info/funding-tenders/funding-opportunities/funding-programmes/overview-funding-programmes/structural-reform-support-programme-srsp_en
The TSI regulation was adopted in March 2021. According to article 5 its aim is to support: “….institutional reform and efficient and service-oriented functioning of public administration and e-government, simplification of rules and procedures, auditing, enhancing capacity to absorb Union funds, promotion of administrative cooperation, effective rule of law, reform of the justice systems, capacity building of competition and antitrust authorities, strengthening of financial supervision and reinforcement of the fight against fraud, corruption and money laundering” (emphasis added).

(36)      COM(2020) 710 final.

(37)      This information has been collected in cooperation with the group of contact persons on national justice systems for 26 Member States. DE explained that a number of judicial reforms were under way, but that the scope and scale of the reform process can vary within the 16 federal states.

(38)      Two questionnaires have informed this chart, one from the Association of the Councils of State and Supreme Administrative Jurisdictions of the EU (ACA-Europe) and one from the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC). For some Member States, there is only one column present in the chart. In these cases, there is no Supreme Administrative Court, or no answers were provided to the survey sent to the NPSJC.

(39)      The enforcement of court decisions is also important for the efficiency of a justice system. However, comparable data are not available in most Member States.

(40)      In IT, the temporary slowdown of judicial activity due to strict restrictive measures to address the COVID-19 pandemic affected the disposition time. More details on the individual Member States’ situation are presented in 2020 study on the functioning of judicial systems in the EU Member States – country profiles, carried out by the CEPEJ Secretariat for the Commission: https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/eu-justice-scoreboard_en .

(41)      2020 study on the functioning of judicial systems in the EU Member States, carried out by the CEPEJ Secretariat for the Commission: https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/eu-justice-scoreboard_en

(42)      Length of proceedings, clearance rate and number of pending cases are standard indicators defined by CEPEJ: http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp

(43)      The years were chosen to keep the eight-year perspective with 2012 as a baseline, while at the same time not overcrowding the figures. Data for 2010, 2013, 2014, 2015, 2016 and 2017 are available in the CEPEJ report.

(44)      The length of proceedings in specific areas is calculated in calendar days, counting from the day on which an action or appeal was lodged before the court (or the indictment became final) until the day on which the court adopted its decision (Figures 16-21). Values are ranked based on a weighted average of data for 2013 and 2018‑2020 for Figures 16-18, data for 2013, 2018, 2019 and 2020 for Figure 19, and data for 2014 and 2018‑2020 for Figures 20 and 21. Where data was not available for all years, the average reflects the available data, calculated based on all cases, a sample of cases or estimations.

(45)      Figure 18 of the Retention and Expansion of Foreign Direct Investment, Political Risk and Policy Responses, 2019 the World Bank Group.

(46)      See http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN and Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance), OJ L 1, 4.1.2003, p. 1–25, in particular Articles 3 and 5.

(47)      The calculation has been made based on the length of cases of appeal against national regulatory authority decisions applying national laws that implement the EU regulatory framework for electronic communications (Directives 2002/19/EC (Access Directive), Directive 2002/20/EC (Authorisation Directive), Directive 2002/21/EC (Framework Directive), Directive 2002/22/EC (Universal Service Directive), as well as other relevant EU law such as the radio spectrum policy programme and Commission spectrum decisions, excluding Directive 2002/58/EC on privacy and electronic communications.

(48)      Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trademark (OJ L 154, 16.62017, p. 1-99).

(49)      Figures 22 and 23 relate to the enforcement of the Unfair Terms Directive (93/13/EEC), the Consumer Sales and Guarantees Directive (1999/44/EC), the Unfair Commercial Practices Directive (2005/29/EC) and the Consumer Rights Directive (2011/83/EC), and their national implementing provisions.

(50)      Recital 2 of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing.

(51)      IMF factsheet, March 8, 2018: https://www.imf.org/en/About/Factsheets/Sheets/2016/08/01/16/31/Fight-Against-Money-Laundering-the-Financing-of-Terrorism  

(52)      Article 44(1) of Directive (EU) 2015/849. See also revised Article 44 of Directive (EU) 2018/843, which entered into force in June 2018 and had to be implemented by Member States by January 2020.

(53)      HR, IT, CY, HU, MT, PL, PT and SK who received 2020 European Semester country-specific recommendations, and BE, BG, IE, EL, ES, RO, and SI, for whom the challenges have been reflected in the recitals of their 2020 country-specific recommendations and country reports. Differences in the results over the eight years analysed may be explained by contextual factors (differences of more than 10% in the number of incoming cases are not unusual) or systemic deficiencies (lack of flexibility and responsiveness or inconsistencies in the reform process).

(54)

     Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating money laundering by criminal law will eliminate legal obstacles that may delay prosecution, such as that prosecution for money laundering can only start when the proceedings for the underlying predicate offence have been concluded. Member States had to transpose the Directive before 8 December 2020.

(55)      Court fees are understood as an amount to be paid to initiate non-criminal legal proceedings in a court or tribunal.

(56)

     Legal fees are the bill for services provided by lawyers to their clients.

(57)      Article 47(3) of the Charter of Fundamental Rights of the EU.

(58)      Member States use different methods to establish the eligibility threshold, e.g. different reference periods (monthly/annual income). About half of the Member States also have a threshold tied to the applicant’s personal capital. This is not taken into account for this figure. In BE, BG, IE, ES, FR, HR, HU, LT, LU, NL and PT, certain groups of people (e.g. individuals who receive certain benefits) are automatically entitled to receive legal aid in civil/commercial disputes. Additional criteria that Member States may use, such as the merit of the case, are not reflected in this figure. Although not directly related to the figure, in several Member States (AT, CZ, DE, DK, IT, NL, PL, SI) legal aid is not limited to natural persons.

(59)      To collect comparable data, each Member State’s Eurostat poverty threshold has been converted to a monthly income. The at-risk-of-poverty (AROP) threshold is set at 60 % of the national median equivalised disposable household income. European Survey on Income and Living Conditions, Eurostat table ilc_li01, https://ec.europa.eu/eurostat/databrowser/view/ilc_li01/default/table?lang=en

(60)      2021 data collected using replies from Council of Bar and Law Societies in Europe (CCBE) members to a questionnaire based on the following specific scenario: a dispute of a consumer with a company (two different claim values indicated: EUR 6 000 and the Eurostat AROP threshold for each Member State). Given that conditions for legal aid depend on the applicant’s situation, the following scenario was used: a single 35-year-old employed applicant without any dependant or legal expenses insurance, with a regular income and a rented apartment.

(61)      The data, referring to income thresholds valid in 2020, have been collected using replies from Council of Bar and Law Societies in Europe (CCBE) members to a questionnaire based on the following scenario: a consumer dispute between an individual and a company (two different claim values indicated: EUR 6 000 and the Eurostat AROP threshold for each Member State).

(62)      The data have been collected using replies from Council of Bar and Law Societies in Europe (CCBE) members to a questionnaire based on the scenario described above. CCBE members were asked to provide information on the payable court fee to file the action in the case in the scenario.

(63)      The data have been collected using replies from CCBE members to a questionnaire based on the same scenario as for Figure 27 (footnote 62). The following scenario was used as a basis for calculating the legal fees: the company seeking to enforce the contract contracted a specialised and experienced lawyer. The lawyer did the following work: in the pre-litigious phase: 3 hours of work, with one document produced for an hourly legal fee of EUR 200 (overall EUR 600); phase: 11 hours of work, with 3 documents produced and 2 court hearings for an hourly legal fee of EUR 200 net (overall EUR 2 200). CCBE members were asked to provide information on a) the statutory fee for the work in the (pre-)litigious phase, if existing and b) the amount of the legal fee that the court would reasonably order the losing party to reimburse. (The hypothetical hourly legal fee has been changed compared to the 2020 EU Justice Scoreboard, with the result that the answers are not comparable).

(64)      The methods for promoting and incentivising the use of ADR do not cover compulsory requirements to use ADR before going to court, as such requirements raise concerns about their compatibility with the right to an effective remedy before a tribunal enshrined in the Charter of Fundamental Rights of the EU.

(65)      2021 data collected in cooperation with the group of contact persons on national justice systems.

(66)       https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html  

(67)      2021 data collected in cooperation with the group of contact persons on national justice systems.

(68)      In the first scenario, during the court proceedings related to the expropriation, the authorities order a mining company to cease mining with immediate effect; they rely on earlier complaints made by house owners in the neighbouring village, already settled by the mining company. The company would incur a daily profit loss of EUR 8 000 if it complied with the administrative decision. The company challenges the administrative decision in court, which eventually overturns the decision as ill-founded. In the second scenario, a company established in Member State ‘B’ files with the competent authority in Member State ‘A’ a request for permission to build an 800 square meters retail store in the capital city of Member State ‘A’. The company does not receive any reply from the authority in question within the statutory time limit/within what seems a reasonable time to reply (period of administrative silence). Finally, the figure examines whether the company can seek financial compensation for the losses it incurred because of the delay (the period of administrative silence) in granting the building permit (assuming that the building permit is finally granted) from the competent authority.

(69)      2021 data collected in cooperation with the group of contact persons on national justice systems.

(70)      2021 data collected in cooperation with the group of contact persons on national justice systems and the European Judicial Training Network.

(71)      2021 data collected in cooperation with the group of contact persons on national justice systems.

(72)      European Institute for Gender Equality, Gender Statistics Database: https://eige.europa.eu/gender-statistics/dgs/indicator/wmidm_jud_natcrt__wmid_natcrt_supcrt/datatable  

(73)      2021 data collected in cooperation with the European Judicial Training Network.

(74)      2019 data collected in cooperation with the group of contact persons on national justice systems.

(75)      Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘Digitalisation of justice in the European Union: A toolbox of opportunities’ COM(2020)710 and accompanying SWD(2020)540.

(76)      2021 data collected in cooperation with the group of contact persons on national justice systems.

(77)      2021 data collected in cooperation with the group of contact persons on national justice systems.

(78)      2021 data collected in cooperation with the group of contact persons on national justice systems.

(79)      2021 data collected in cooperation with the group of contact persons on national justice systems.

(80)      2021 data collected in cooperation with the group of contact persons on national justice systems.

(81)      2021 data collected in cooperation with the group of contact persons on national justice systems.

(82)      2021 data collected in cooperation with the group of contact persons on national justice systems.

(83)      See Best practice guide for managing Supreme Courts, under the project Supreme Courts as guarantee for effectiveness of judicial systems, p. 29.

(84)      Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

(85)      Anonymisation/pseudonymisation is more efficient if assisted by an algorithm. However, human supervision is needed, since the algorithms do not understand context.

(86)      Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (OJ L 345, 31.12.2003, p. 90) and Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information (OJ L 172, 26.6.2019, p. 56).

(87)      Judgments modelled according to standards (e.g. Akoma Ntoso) and their associated metadata are downloadable free of charge in the form of a database or by other automated means (e.g. Application Programming Interface).

(88)      See also Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – A European strategy for data, COM(2020) 66 final, Commission White Paper on Artificial Intelligence – A European approach to excellence and trust, COM(2020) 65 final, and Conclusions of the Council and the representatives of the Governments of the Member States meeting within the Council on Best Practices regarding the Online Publication of Court Decisions (OJ C 362, 8.10.2018, p. 2).

(89)      2020 data collected in cooperation with the group of contact persons on national justice systems.

(90)      2020 data collected in cooperation with the group of contact persons on national justice systems.

EUROPEAN COMMISSION

Brussels, 19.5.2022

COM(2022) 234 final

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS

2022 EU Justice Scoreboard

3.3. Independence

Judicial independence, which is integral to the task of judicial decision-making, is a requirement stemming from the principle of effective judicial protection referred to in Article 19 TEU, and from the right to an effective remedy before a court or tribunal enshrined in Article 47 of the Charter of Fundamental Rights of the EU ( 1 ). That requirement presumes:

(a) external independence, when the body concerned exercises its functions autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions; and

(b) internal independence and impartiality, when an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings ( 2 ).

Judicial independence guarantees that all the rights that individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded ( 3 ). Preserving the EU legal order is fundamental for all citizens and business whose rights and freedoms are protected under EU law.

A high perceived independence of the judiciary is paramount for the trust which justice in a society governed by the rule of law must inspire in individuals, and is contributing to a growth-friendly business environment, as a perceived lack of independence can deter investments ( 4 ). In addition to indicators on perceived judicial independence from various sources, the Scoreboard presents a number of indicators on how justice systems are organised to protect judicial independence in certain types of situations where independence could be at risk. Reflecting the input from the European Network of Councils for the Judiciary (ENCJ), the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC), and from the Expert Group on Money Laundering and Financing of Terrorism (EGMLTF), the Scoreboard presents indicators related to security checks on judges, possibility of higher/Supreme Courts to take decisions on the consistency of case-law of lower courts on their own initiative , safeguards in revolving doors situations regarding judges and prosecutors, as well as a more in-depth view on the possibility to have a review of a decision of a prosecutor not to prosecute a case.

3.3.1. Perceived judicial independence and effectiveness of investment protection

Figure 50: How the general public perceives the independence of courts and judges (*) (source: Eurobarometer ( 5 ) - light colours: 2016, 2020 and 2021, dark colours: 2022)

(*) Member States are ordered first by the percentage of respondents who stated that the independence of courts and judges is very good or fairly good (total good); if some Member States have the same percentage of total good, then they are ordered by the percentage of respondents who stated that the independence of courts and judges is fairly bad or very bad (total bad); if some Member States have the same percentage of total good and total bad, then they are ordered by the percentage of respondents who stated that the independence of courts and judges is very good; if some Member States have the same percentage of total good, total bad and of very good, then they are ordered by the percentage of respondents who stated that the independence of courts and judges is very bad.

Figure 51 shows the main reasons given by respondents for the perceived lack of independence of courts and judges. Respondents among the general public, who rated the independence of the justice system as being ‘fairly bad’ or ‘very bad,’ could choose between three reasons to explain their rating. The Member States are listed in the same order as in Figure 50.

Figure 51: Main reasons among the general public for the perceived lack of independence (share of all respondents - higher value means more influence) (source: Eurobarometer ( 6 ))

Figure 52: How companies perceive the independence of courts and judges (*) (source: Eurobarometer ( 7 ) - light colours: 2016, 2020 and 2021, dark colours: 2022)

(*) Member States are ordered first by the percentage of respondents who stated that the independence of courts and judges is very good or fairly good (total good); if some Member States have the same percentage of total good, then they are ordered by the percentage of respondents who stated that the independence of courts and judges is fairly bad or very bad (total bad); if some Member States have the same percentage of total good and total bad, then they are ordered by the percentage of respondents who stated that the independence of courts and judges is very good; if some Member States have the same percentage of total good, total bad and of very good, then they are ordered by the percentage of respondents who stated that the independence of courts and judges is very bad.

Figure 53 shows the main reasons given by respondents for the perceived lack of independence of courts and judges. Respondents among companies, who rated the independence of the justice system as being ‘fairly bad’ or ‘very bad,’ could choose between three reasons to explain their rating. The Member States are listed in the same order as in Figure 52.

Figure 53: Main reasons among companies for the perceived lack of independence (rate of all respondents - higher value means more influence) (source: Eurobarometer ( 8 ))

Figure 54 shows a new indicator on how companies perceive the effectiveness of investment protection by the law and courts as regards, in their view, unjustified decisions or inaction by the State.

Figure 54: How companies perceive the effectiveness of investment protection by the law and courts (source: Eurobarometer ( 9 ))

(*) Member States are ordered first by the combined percentage of respondents who stated that they are very or fairly confident in investment protection by the law and courts (total confident).

Figure 55 shows the main reasons given by respondents for the perceived lack of effectiveness of investment protection. Respondents among companies, who rated their level of confidence as 'fairly unconfident' or 'very unconfident', could choose four reasons to explain their rating (and some indicated “other”). The Member States are listed in the same order as in Figure 54.

Figure 55: Main reasons among companies for their perceived lack of effectiveness of investment protection (source: Eurobarometer ( 10 ))

3.3.2. Structural independence

The guarantees of structural independence require rules, particularly as regards the composition of the court and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of the court to external factors and its neutrality with respect to the interests before it ( 11 ). Those rules must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence that are more indirect and that are liable to have an effect on the decisions of the judges concerned ( 12 ).

European standards have been developed, particularly by the Council of Europe, for example in the 2010 Council of Europe Recommendation on judges: independence, efficiency and responsibilities ( 13 ). The EU Justice Scoreboard presents certain indicators on issues that are relevant when assessing how justice systems are organised to safeguard judicial independence.

Specifically, this edition of the Scoreboard contains new indicators on: (i) authorities involved and the frequency of potential security checks on judges (Figure 56); (ii) the possibility of higher/Supreme Courts to take decisions on the consistency of case-law on their own initiative (Figure 57); and (iii) the safeguards in place relating to the temporary employment of judges/prosecutors on political posts (Figure 58) ( 14 ). It also presents a more detailed overview of the possibility to have a review of a decision of a prosecutor not to prosecute a case involving crimes with a victim or a case involving 'victimless crimes' (e.g. corruption or money laundering) (Figure 59), and shows the bodies with power to conduct criminal investigations (Figure 60) ( 15 ). The figures present the national frameworks as they were in place in December 2021.

The figures presented in the Scoreboard do not provide an assessment nor present quantitative data on the effectiveness of the safeguards. They are not intended to reflect the complexity and details of the procedures and accompanying safeguards. It should also be noted that implementing policies and practices to promote integrity and prevent corruption within the judiciary are also essential to guarantee judicial independence. Ultimately, the effective protection of judicial independence also requires, beyond whatever necessary norms, a culture of integrity and impartiality, shared by magistrates and respected by the wider society.

The special place of the judiciary within the system of the separation of powers and the emphasis placed upon judicial independence and impartiality require that laws regulating the assessment or evaluation of the professional duties of judges must be worded and applied with great care and the role of the executive or legislative branches in this process should be limited to the extent absolutely necessary ( 16 ). 

Figure 56 shows whether in Member States the National Security Agency is involved in conducting security checks on judges - either candidate judges or existing judges, and how often they are made.

The involvement of National Security Agencies belonging to the executive in the appointment and status of judges is particularly sensitive from the perspective of judicial independence. While there may be a legitimate interest, especially for certain specific judicial posts, to conduct a verification of security ( 17 ), this should be done in full respect for judicial independence. According to European standards, “independence means that the judiciary is free from external pressure, and is not subject to political influence or manipulation, in particular by the executive branch” ( 18 ). Security checks on judges, especially when carried out by an executive body, may constitute such an ‘external pressure’ ( 19 ). When security/integrity checks are not carried out by self-governing bodies of the judiciary themselves but by an external body, utmost consideration must be given to respecting the principles of separation of powers and checks and balances ( 20 ).

Figure 56: National security checks on judges: authorities involved and timing (*) ( 21 )

(*) DE: In all federal states, the National Security Agency can check its records about a candidate judge before appointment upon an explicit request. In two federal states, the National Security Agency conducts a check of its records on all candidate judges before appointment: in Bavaria (if a candidate judge does not give consent for the check of records, they cannot be appointed); since 2021, in Mecklenburg-Western Pomerania (not requiring their consent). By law, the National Security Agency or the agencies of the federal states only perform verification processes if judges are to be concerned with tasks within the court administration and need to get access to classified information for that purpose. Apart from that, judges are legally exempt from security checks when granted access to classified information, as such procedures could influence judicial independence. EE: The Internal Security Service performs the security check of a candidate for judicial office, except if the candidate holds a valid access permit to access state secrets classified as top secret or if the candidate occupies a position that provides the right by virtue of office to access all levels of state secrets. The Internal Security Service presents the information gathered as a result of the security check to the judge’s examination committee and provides an opinion on whether a person who submitted the application meets the conditions for being issued a permit for access to state secrets. HR: The Security and Intelligence Agency conducts security checks on all candidates for judges and on all existing judges every 5 years (as well as state attorneys). According to the law, for existing judges, the Security and Intelligence Agency, after conducting a check including an interview, will send its report to the Supreme Court President who will then assign it to a panel of five Supreme Court judges to decide if there is a security issue. If the panel finds a security issue, this will be notified to the Minister of Justice, the Court President and Judges’ Council and the President of Higher Court where the judge in question sits. The Minister of Justice will prescribe the by-laws regulating the procedure for conducting security checks. FR: As all state officials, all candidate judges are subjected to a police records check/an administrative investigation led by the national police under the authority of the general prosecutor (checking its records, classified information, morality behaviour…). IT: The chart reflects the situation for judges in civil and criminal courts. National security agencies are not involved in the procedure for appointing administrative judges. HU: All regional court presidents, vice presidents and judges who permit intelligence data gathering or deal with cases related to classified information need to undergo a security check by the National Security Agency . The security check is conducted before assuming their responsibilities and then every five years (Section 71/C, paragraph (7), of Act CXXV of 1995 on National Security and Sections 42/A to 42/C of Act CLXII of 2011 on the Status and Remuneration of Judges). NL: A certificate of good conduct (VOG) needs to be handed over before a candidate judge can be appointed. This is only done at first appointments or when a judge becomes president of a court. The organisation providing VOGs is called Justis - the screening authority that is a benefit-expense agency with independent management, which is formally under the Ministry of Justice & Security. The authority checks whether a candidate’s (judicial) history is an objection to carrying out the duties of the new office. Justis is not the National Security Agency (AIVD). It is the decision of Justis, whether or not to hand out a certificate of good conduct. If someone wishes to appeal this decision, they can take the case to an administrative judge. PL: When a person first applies to a judicial post, the president of the competent court (where the vacant post exists) requests information on the candidate from the Regional Head of Police. RO: Judges give a formal statement, on a yearly basis, that they are not operatives, including undercover agents, informers or collaborators of the intelligence services. SE*: The Judicial Appointments Board, an independent judicial body, conducts the verification procedure for all security levels for court presidents, based on a questionnaire. Each court performs the verification procedure for all security levels for first or second instance judges. The Swedish Security Service conducts a records check (whether the candidate has been referred to in its records in any way), which is carried out before a person can take part in security sensitive activities (the Service does not collect information through a questionnaire, which is the task of the Judicial Appointments Board). For court presidents, the government decides which positions are to be classified for security on the highest security level and the Government Office decides which positions are to be classified for security on the lower security levels. For first or second instance judges, the government decides which positions are to be classified for security on the highest security level and the court decides which positions are to be classified for security on the lower security level.

Figure 57 shows whether courts or judges have the possibility to take decisions on the consistency of case-law of lower courts on their own initiative. Such decisions could either be advisory or obligatory, and could apply only to a particular case, or to all cases of a similar type. The figure below shows four different situations in Member States: higher courts/judges i) cannot issue such decision on their own initiative, ii) they can issue advisory (non-binding) decisions of general application that apply to all courts/judges in particular types of cases (e.g. practice statements), iii) they can issue obligatory decisions of concrete application that apply only to a specific judicial decision (e.g. decision which oblige a judge/panel to adapt the draft judgment), or iv) they can issue obligatory decisions of general application that apply to all courts/judges in particular types of cases.

Supreme Courts, as final instance courts, and higher/appeal courts in general, are essential to secure the uniform application of the law in Member States. Nevertheless, hierarchical judicial organisation should not undermine individual independence ( 22 ). Superior courts should not address instructions to judges about the way they should decide individual cases, except in national preliminary rulings or when deciding on legal remedies according to the law ( 23 ). A hierarchical organisation of the judiciary in the sense of a subordination of judges to higher instances in their judicial decision-making activity would be a clear violation of the principle of internal independence, according to the Venice Commission ( 24 ). Any procedure for the unification of case-law must comply with fundamental principles of separation of powers, and even after such a decision of a higher/Supreme Court, all courts and judges must remain competent to assess their cases independently and impartially, and to distinguish new cases from the interpretation previously unified by a higher/Supreme Court.

Figure 57: Possibility of higher/Supreme Courts to take decisions on the consistency of case-law of lower courts on their own initiative (*)

(*) BG: Not following the obligatory decision or a general direction for particular kinds of cases is taken into account during the evaluation of the magistrates, which is an objective assessment of their professional, business and moral qualities, demonstrated in the performance of their position. CZ: The Supreme Court and Supreme Administrative Court can issue unifying opinions which are not formally binding for the courts of lower level. The binding nature of the unifying opinions is based not on their formal status but on the authority of the Supreme Courts and the persuasiveness of their reasoning. The Supreme Court uses unifying opinions for legal questions they consider to be of special importance. Regarding the possibility to diverge, a judge is bound only by the law in their decision-making. A diversion is thus possible but such a decision should be properly justified. HR: There are registration judges on each county court and on High Commercial Court, High Misdemeanour Court, High Administrative, High Criminal Court and Supreme Court, which register the judgments so that they can be notified to the parties, and can alert a judge/chamber when a draft judgment diverges from previously delivered case law and can propose to discuss the divergence at a section meeting pursuant to Article 40 of the Law on Courts, in order to issue a decision of the section which is binding on all judges in the court. LV: The Plenary Session (the assembly of all judges of the Supreme Court) and the general meeting of judges of the Departments of the Supreme Court can adopt opinions regarding the issues of interpretation and application of law standards in the form of a decision, which is published on the web site. HU: a judge can diverge from the obligatory decision 'only if the facts of the case differ from the facts of the obligatory decision or with reasoning of diverging in points of law.' PL: Among others, the First President of the Supreme Court or Presidents of the Supreme Court’s chambers, or the President of the Supreme Administrative Court may propose on their own initiative that an ‘abstract legal issue’ is clarified by a panel of seven judges of the Supreme Court/Supreme Administrative Court in case of non-uniformity of judicial decisions/judgments delivered by the courts. The abstract resolution adopted by seven judges, presenting interpretation of the law, is not binding for the lower courts and has an influence on lower court only based on the authority of the Supreme Court/Supreme Administrative Court and on the persuasiveness of their reasoning. Such abstract resolutions may be binding on the Supreme Court only if the seven-judge panel decides so, unless overruled by a larger bench (e.g. a resolution of a whole Chamber of the Supreme Court or by the whole Supreme Court; Art. 88 of the Law on the Supreme Court). RO: To ensure a consistent interpretation and implementation of the law by all courts, the High Court of Justice and Cassation in the procedure ‘appeals in the interest of the law’, ex officio or upon request by parties, rules on legal issues that have been settled differently by courts of law. Such decisions have no effects on the court judgments being examined or on the status of parties in those cases. According to Article 99 of Law no. 303/2004 on the statute of judges and prosecutors, not complying with the appeals in the interest of law of the High Court of Cassation and Justice constitutes a disciplinary misconduct. This means that a disciplinary procedure against the judge concerned can be initiated. SI: Principled legal opinions on issues important for the uniform application of laws have a nature of a normative individual legal act whose scope goes beyond a specific case. It is binding on all panels of the Supreme Court and, only by force of reasoning, on lower courts, for which it is constitutionally acceptable to deviate from the adopted principled legal opinion, as in the case of deviating from the established case-law, if such deviation is supported by reasoning. SK: A court/judge is bound by the obligatory decision of the hierarchically superior court. In certain cases the inferior court is entitled to diverge from the obligatory decision of hierarchically superior courts/judges. There are three main reasons for doing so: (i) change of facts; (ii) different legal opinion expressed in the judgment of the Court of Justice of the EU; and (iii) an amendment of the laws. For specific proceedings, a judge can be subject to disciplinary proceedings at the Supreme Court.

Figure 58 shows the safeguards in place in situations where judges or prosecutors decide to temporarily become employed in politically-exposed positions, notably positions as politicians, ministers, government officials, cabinet members or positions in other political offices. The figure shows whether or not judges or prosecutors can take up such employment and afterwards return to the position of a judge or a prosecutor, or whether specific rules are in place to safeguard their impartiality.

Figure 58: Safeguards relating to temporary employment of judges/prosecutors as politicians/ministers/government officials/cabinet members/in other political offices (*)

(*) BG: Magistrates can temporarily be appointed in these positions. For their re-appointment as judges/prosecutors/investigative magistrates, special procedural rules are in place requiring an application to be submitted to the relevant panel of the Supreme Judicial Council within 14 days from the date of their dismissal from the other (temporary) position with a view to their reinstatement. DE: If a prosecutor is elected to the Federal Parliament/appointed as a member of the Federal Government, the rights and duties deriving from the public employment are suspended for the period of the mandate (with the exception of duties relating to official secrecy and the prohibition to accept rewards or gratifications); when the mandate at the Bundestag has come to an end, the respective public servant may request (within a period of 3 month after the end of the mandate) their reinsertion into their former service, which has to be realised within 3 month after the request and at the same or an equivalent level as the former position (if reinsertion is not requested, the rights and duties deriving from the public employment continue to be suspended). In case of a return of a public official after a period of activity as a government member, which, in principle, is possible with consent of both sides (otherwise a status of retirement applies), the specific rules (statutory disclosure requirements or related possibilities for a temporary prohibition to take up certain activities) do not apply - such requirements only apply, where subsequent activities in the private sector are intended by a former government member. DK: It is a prerequisite that upon returning to the prosecution service, the prosecutor can be approved and sustain the security approval provided. EE: Judges: Although there is no specific regulation, which would limit the areas in which the judge could work, upon returning to judgeship, there is one important condition upon the return: a judge may return to a vacant position of judge in the same court by giving at least one month’s advance notice thereof to the chairman of the corresponding court. If after leaving the state service, a judge does not have the opportunity to return to a vacant position of judge in the same court and they do not desire to be transferred to another court, the judge is released from office and receives compensation in an amount equal to their six months’ salary. Prosecutors: a prosecutor cannot be a member of a political party. ES: Judges: Judges who become members of Parliament or Government can return to the same court or judicial position after their political mandate. The only exception to these rules applies to judges of the Supreme Court, who lose their judicial position at the Supreme Court upon returning to judgeship and must sit at a lower court. Furthermore, the general rules of withdrawal and recusal apply if the judge has to decide a case which involves politicians or political interests upon returning to judgeship. Prosecutors: Those who are returned to the prosecution service must refrain, and where appropriate may be challenged, from intervening in any matters in which political parties or groups are involved, or those of their members who hold or have held public office. FR: To return to the judgeship, a judge who has been previously politician/minister/government official/cabinet member is required to apply to a new position and the Council must formally approve their appointment. Before returning to a position of a judge, the person must wait during a "cooling-off" period of five years in the area it exercised a public mandate, or three years in the case of a European Parliament mandate. HR: There are specific rules regarding the positions to which prosecutors can temporarily be seconded as well as procedure that must be followed. IT: The chart reflects the situation in the civil and criminal courts. The High Council for the Judiciary must give authorisation for judges in civil and criminal courts. Administrative judges can work in consultative sections of Council of State or in jurisdictional sections which have no competence on matters related to the previous activity of the judge. Prosecutors who run for Parliamentary elections may return to the prosecution service only to work in a district other than the one where they run for election (irrespective of whether they were elected or not). Prosecutors may not run for Parliamentary elections in the district where they performed their functions in the last six months prior to their candidacy. For regional and municipal elections, prosecutors may not run for election in the Region where they exercise their functions. LV: Judges cannot be involved in any capacity in political life (even not members of a political party). AT: regarding prosecutors, before returning to a position of a prosecutor in a management position (i.e. head of a public prosecutor's office, of a senior public prosecutor's office, of the General procurator's office), the person must wait during a "cooling-off" period of five years. PL: As regards appointment to political positions, the elected judge must renounce his judicial mandate but retains the right to return to judicial office (to the post held prior to the appointment) if the period in which the political function was exercised does not exceed 9 years. Authorisation is required by the National Council for Judiciary. PT: Judges and prosecutors need a previous authorisation of the Judicial High Council or Superior Council of Public Prosecution (CSMP), respectively. SK: After returning to judgeship, judge must not apply for a position of President or Vice-President of court. Notification is done to Ministry of Justice 60 days before returning to the judgeship.

– Safeguards relating to the functioning of national prosecution services in the EU –

Public prosecution plays a major role in the criminal justice system as well as in cooperation between Member States in criminal matters. The proper functioning of the national prosecution service is crucial for the effective fight against crime, including economic and financial crime, such as money laundering, and corruption. According to the case-law of the Court of Justice relating to the European Arrest Warrant Framework Decision ( 25 ), the public prosecutor’s office can be considered a Member State judicial authority for the purposes of issuing and executing a European arrest warrant whenever it can act independently, without being exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice ( 26 ).

The organisation of national prosecution services varies across the EU and there is no uniform model for all Member States. However, the Council of Europe has noted a widespread tendency to have a more independent prosecutor’s office, rather than one subordinated or linked to the executive ( 27 ). According to the Consultative Council of European Prosecutors, an effective and autonomous prosecution service committed to upholding the rule of law and human rights in the administration of justice is one of the pillars of a democratic state ( 28 ). Moreover, in a democratic society, both courts and the investigative authorities must remain free from political pressure. The concept of independence means that prosecutors are free
from unlawful interference in the exercise of their duties so as to ensure full respect for and application of the law and the principle of the rule of law and that they are not subjected to any political pressure or unlawful influence of any kind ( 29 ). Independence applies not only to the prosecution service as a whole, but also to its particular bodies and to individual prosecutors ( 30 ). Whatever the model of the national justice system or the legal tradition in which it is anchored, European standards require that Member States take effective measures to guarantee that public prosecutors are able to fulfil their professional duties and responsibilities under adequate legal and organisational conditions ( 31 ) and without unjustified interference ( 32 ). In particular, where the government gives instructions of a general nature, for example on crime policy, such instructions must be in writing and published in an adequate way ( 33 ). Where the government has the power to give instructions to prosecute a specific case, such instructions must carry with them adequate guarantees ( 34 ). According to the 2000 Recommendation of the Committee of Ministers of the Council of Europe, instructions not to prosecute should in principle be prohibited or be exceptional and subject to specific safeguards ( 35 ). Interested parties (including victims) should be able to challenge a decision of a public prosecutor not to prosecute a case ( 36 ), which also provides a form of accountability of prosecutors ( 37 ).

The decision not to prosecute can create an issue in terms of accountability of prosecutors, which is why a legal remedy is important ( 38 ). The figure below provides a more detailed overview of the possibility to have a review of a decision of a prosecutor not to prosecute a case. These figures do not assess the effective functioning of the prosecution services, which requires a qualitative assessment that takes account of the specific circumstances of each Member State.

Figure 59 presents the authorities that decide on a request to review a decision of a prosecutor not to prosecute in an individual case for victimless crimes (e.g. money laundering, corruption) and for crimes with a victim (e.g. bodily harm) ( 39 ). It shows who conducts a check on the work of individual prosecutors, which has an impact on the functioning of the prosecution service. In some Member States, the decision not to prosecute is reviewed by different authorities: either superior prosecutors (including where relevant the Prosecutor General) or a court. In some Member States, the decision is first reviewed before the superior prosecutors, and then this decision can be challenged before a court (countries where column is in two colours). Where the column is in one colour, either only the superior prosecutor, or only the court review the decision not to prosecute. In some of Member States, the decision cannot be reviewed.

Figure 59: Authority reviewing a prosecutor’s decision not to prosecute (*) (Source: European Commission with the Expert Group on Money Laundering and Financing of Terrorism)

(*) For all Member States: Where such review exists, in the case of victimless crimes, the decision not to prosecute could be challenged/overruled by the superior prosecutor (in BG, CZ, DE, ES, FR, LV, LU, PL, PT and RO), challenged by the complainant who notified about the alleged criminal offense (in DE (via disciplinary complaint), IE (National Police Service), FR (including administrative bodies), PL (as regards state and local-government institutions, and private parties in specific cases, HR, IT, LV, HU, NL, SI and SK) or could be challenged by others, such as persons who have presumed/legitimate interest (DK, DE, RO), the Commissioner for Legal Protection (AT), anyone (PT: for certain victimless crimes) and anyone (FI). In the case of crimes with a victim, the decision not to prosecute can be challenged by the superior prosecutor (in BG, CZ, DE, FR, LV, LU, PT and RO), by the victim (in BG, CZ, DE, EE, IE, ES, FR, IT, LV, HU, MT, NL, AT, PT, PL, SI and SK) or by others, such as persons who have presumed/legitimate interest (DK, RO, PL), an administration that its entitled to act (FR), and anyone (FI). Private prosecution is possible in BG, IE, HR, HU, MT, PL, PT, SI and SE.

The symbols ‘##’ for AT: Austrian law knows different types of decisions not to prosecute. If the prosecution refrains from starting investigations because of the lack of an initial suspicion, then the decision cannot be challenged (The decision is however not binding). If the prosecution decides not to prosecute after an investigation (both in certain victimless crimes and crimes with a victim), the decision can be challenged before the court. The symbol ‘*’ for BG: The prosecutor decides whether the requirements of the law for initiating preliminary proceedings are present. If not, the prosecutor issues a Decree for refusal to institute preliminary proceedings (the refusal to open an investigation). This refusal is subject to appeal only before the higher-standing prosecutor’s office. If preliminary proceedings were initiated, once concluded, the prosecutor can terminate them or to bring the case to the court (the decision to prosecute). The decree not to start a prosecution for crimes with a victim, is subject to appeal before court within 7 days. If this deadline is not met, the decision can still be appealed but only before the higher-standing prosecutor’s office. In cases of victimless crimes, the decision not to prosecute can only be revoked ex officio by the higher-standing prosecutor’s office by a signal or after self-initiation. EE: A victim can file an appeal against the investigative body’s decision not to initiate criminal proceedings with the prosecutor’s office. The decision of the prosecutor’s office not to initiate or to terminate criminal proceedings can be challenged at the Office of the Prosecutor General. The decision of the Office of the Prosecutor General can be challenged at the District Court. ES: The judge investigator is the authority vested with the power to decide whether to prosecute or not. Following a decision not to prosecute, the judge investigator should inform the other parties to the process (i.e. the public prosecutor and the victim/complainant), who are able to challenge the decision before the court. IT: In any criminal proceedings, if the public prosecutor deems that the conditions for prosecution are not met (e.g. due to insufficient evidence), he/she shall file a request for dismissal with the judge for preliminary investigations who shall decide whether to accept or not the prosecutor’s request. CY: If the Attorney General decides not to prosecute a case (based on the evidence at hand and recommendations of the Attorneys at the Law Office), only the Attorney General can reverse such a decision. LT: The decision of a pre-trial investigation officer not to commence a pre-trial investigation is made only with the consent of the head of the pre-trial investigation authority. The resolution not to commence a pre-trial investigation must be sent to the prosecutor within 24 hours, who checks the decision within 10 days. The rejected decision of the prosecutor can be appealed to the court. The resolution of a pre-trial investigation officer can also be appealed to the prosecutor. If rejected, the prosecutor's decision can be appealed to the court. The judge's decision again can be appealed to the superior court. HU: Judicial review for crimes with a victim is possible only in the framework of private prosecution (e.g. in cases of defamation and libel) or substitute private prosecution (following a prosecutorial decision not to prosecute). MT: Prosecution of criminal offences is being transferred from the police to the Office of the Attorney General. The transition is planned to be completed by the end of 2025. In October 2020, the Attorney General took over the decision to prosecute and the institution of prosecutions before the inferior courts of specified serious crimes. Regulation, entered into effect in October 2020, provides for judicial review (before civil courts) of decisions not to prosecute of the Attorney General on the ground of illegality or unreasonableness. When the decision to prosecute and prosecution is vested in the Commissioner of Police, challenge proceedings may be instituted before the Court of Magistrates. PL: The framework differentiates between a decision to refuse the initiation of prosecution and a decision to discontinue the prosecution. The initiation of prosecution can be challenged in front of the superior prosecutor and before court, by the victim, State, local-government or community institution which notified the alleged offence. The discontinuation of prosecution can be challenged by the parties to proceedings, State or local-government institution that notified the alleged offence, and, only if the alleged offence led to breach of that person’s rights, a person notifying an offence concerning solely specific types of criminal acts listed in the law. PT: A prosecutor’s decision not to prosecute can be reviewed either through an autonomous procedural phase, the instrução (reopening of the inquiry), which specifically envisages the judicial confirmation of the decision to indict or to file the investigation. This reopening of the inquiry may be requested by an ‘assistente’ if the procedure does not depend upon private prosecution. A prosecutor’s decision not to prosecute can also be reviewed before an immediate superior of the Public Prosecutor within 20 days from the date in which the opening of the inquiry may no longer be requested. SI: State prosecutors cannot dismiss criminal complaints for certain criminal offences without the co-signature of the head of state prosecutor’s office. State prosecutors must inform certain categories of people and state authorities that filed a criminal complaint about their intention and reasons to dismiss it, and enable them to give an opinion on the reasons for the dismissal. Once the decision to dismiss a criminal complaint or to discontinue prosecution has been taken it is final, but the injured party may decide to take over the (private) prosecution. SE: The decision is public. The victim of a crime as well as the suspect can ask for a review. The request is taken care of by the prosecutor who made the decision. In case of new evidence or circumstances, the prosecutor can decide to take action. If no new information, the Development Centre decides on revision.

Figure 60 presents a first overview of bodies and authorities with power to conduct criminal investigations with regard to financial and economic crime, and all other offences. Independent and impartial justice systems that effectively enforce anti-corruption legislation by conducting impartial investigations and prosecutions are important for an effective fight against corruption ( 40 ), as well as against other financial and economic crime. 

Figure 60: Bodies with power to conduct criminal investigation (*) (Source: European Commission with the Expert Group on Money Laundering and Financing of Terrorism)

(*) CZ: Police authorities include also the General Inspection of Security Forces, the Prison Service, customs officers, military police, and also organs of the Security Information Service and organs of the Foreign Intelligence Service, who investigate crimes committed by members of the Security Information Service and the Foreign Intelligence Service respectively. EE: Secret Service is set up for the maintenance of national security through collection of information and implementation of preventive measures as well as investigation of offences. In addition to being a security institution it is also a police-type authority conducting criminal investigations mainly regarding terrorism and grand corruption. PL: Agency of Internal Security, Foreign Intelligence Agency and Service of Military Counter-Intelligence/Intelligence should transmit to public prosecutor any evidence of alleged criminal offences. Under the category 'other', Member States noted: BE: Several public service agencies at federal level. BG: Investigating customs inspector. ES: Customs authorities. IT: Police includes the following law enforcement agencies: Polizia di Stato, Guardia di Finanza and Carabinieri. According to Articles 55 and 57 of the Code of Criminal Procedure other bodies and agencies may perform functions of judicial police (criminal investigations) within the limits provided for by the law (e.g. customs officials). LV: the State Security Service, Internal Security Department of the State Revenue Service, the Military Police, the Latvian Prison Administration, the Corruption Prevention and Combating Bureau, the Tax and Customs Police of the State Revenue Service, the State Border Guard, the captains of seagoing vessels at sea, the commander of a unit of the Latvian National Armed Forces located in the territory of a foreign country, the Internal Security Bureau. LT: The State Border Guard Service, the Special Investigation Service, the Financial Crime Investigation Service, the Customs of the Republic of Lithuania and the Fire and Rescue Department, the Department of Prisons. LU: some sworn public servants (judicial police officers) of different administrations, such as Customs administrations. NL: special investigative bodies, being FIOD (financial-economic inspection), the inspection for social welfare, inspection for the environment and the inspection for agriculture. PL: Border Guard, the Central Anti-corruption Bureau. SK: The Criminal Office of the Financial Administration (FACO) is a special unit within the Financial Directorate of Slovakia entitled to detect and investigate criminal offences in the area of customs and tax regulations. FI: Customs, Border Guard and Defense Forces can also investigate crimes. The Customs has powers to investigate money laundering cases.

– Independence of Bars and lawyers in the EU –

Lawyers and their professional associations play a fundamental role in ensuring the protection of fundamental rights and the strengthening of the rule of law ( 41 ). A fair system of administering justice requires that lawyers be free to pursue their activities of advising and representing their clients. The lawyers’ membership of a liberal profession and the authority deriving from that membership helps to maintain independence, and bar associations play an important role in helping to guarantee lawyers’ independence. European standards require, among others, the freedom of exercise of the profession of lawyer, the independence of the bar associations and lay down the basic principles of disciplinary proceedings against lawyers ( 42 ).

Figure 61: Independence of Bars and lawyers, 2021 (*) (source: European Commission with the CCBE( 43 ))

(*) Maximum possible: 9 points. Survey conducted end-2021. For the question related to guarantees for confidentiality of the lawyer/client relationship 0.5 points were awarded for each of the scenarios (search and seizure of e-data held by the lawyer, search of the premises of the lawyer, interception of lawyer/client communication, surveillance of the lawyer or their premises, tax audit of the law firm and other administrative checks) fully covered. For all other criteria fully met, 1 point was awarded, while no point was awarded where the criterion was not met. Due to a change in the methodology the results are not comparable with those presented in Figure 58 of the 2021 Justice Scoreboard. RO, CY, MT: 2020 replies, adapted to the new methodology. FR: A legislative change in 2021 established the possibility of judicial review of disciplinary measures taken against lawyers. DK: The decisions concerning the authorisation to practice as a lawyer or to accede to the profession are approved by the Ministry of Justice upon recommendation and consultation with the Danish Bar and Law Society. AT: The Ministry of Justice has some structural supervisory powers (related to oversight over the legality of the administrative management of the Bar), however none regarding the day-to-day business of the bars. SE: The Chancellor of Justice has supervisory powers with regard to advocates and may request that disciplinary measures are implemented by the Disciplinary Committee against a negligent member, or by the Board in respect of members who no longer fulfils the formal requirements for membership. CZ: The Ministry of Justice retains a supervisory role in defined matters. EE: The Ministry of Justice has broad supervisory powers over the organisation of the legal aid system. LT: The activities of the Lithuanian Bar Association are based on the principle of independent self-governance of advocates (lawyers), however, following the Law on the Bar regulating the activities of the Lithuanian Bar Association, the Lithuanian Bar Association is obligated by law to coordinate the procedures, related exclusively with activities of advocates with the Ministry of Justice. PL: The Ministry of Justice has a supervisory role over the Bar, organising the bar examinations and controlling the scheme on minimal legal fees.

   4.    CONCLUSIONS

The 2022 EU Justice Scoreboard presents a diverse picture of the effectiveness of justice systems in the Member States. While in some Member States, the high level of digitalisation of the justice system allowed for an almost unobstructed functioning of the courts and prosecution services during the COVID-19 pandemic, in others the temporary closures of courts led to a decrease in efficiency, particularly at first instance courts.

The updated section dedicated to the digitalisation of justice systems shows the trends on the further uptake of digital tools at the disposal of courts, prosecutors and staff members. Challenges remain to ensure full trust of citizens in the legal systems of all Member States. The information in the EU Justice Scoreboard contributes to the monitoring carried out in the framework of the European Rule of Law Mechanism and feeds into the Commission’s annual Rule of Law report.

(1)      See http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN

(2)      Court of Justice, judgment of 16 November 2021, Criminal proceedings against WB and Others, Joined Cases C-748/19 to C-754/19, judgment of 6 October 2021, W. Ż., C-487/19, judgment of 15 July 2021, , Commission v. Poland, C-791/13, judgment of 2 March 2021, AB, C-824/18, judgment of 19 November 2019, A. K. and Others, C-585/18, C-624/18 and C-625/18, ECLI:EU:C:2019:982, paras. 121 and 122; judgment of 5 November 2019, Commission v Poland, C-192/18, judgment of 24 June 2019, Commission v. Poland, C-619/18, ECLI:EU:C:2019:531 paras. 73 and 74; judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, para. 44; judgment of 25 July 2018, Minister for Justice and Equality, C‑216/18 PPU, EU:C:2018:586, para. 65.

(3)      Court of Justice, judgment of 24 June 2019, Commission v. Poland, C-619/18, ECLI:EU:C:2019:531 para. 44.

(4)      In 2020 and 2021, the World Economic Forum has not published the Global Competitiveness Index (GCI) rankings.

(5)      Eurobarometer survey FL503, conducted between 17 and 24 January 2022. Replies to the question: ‘From what you know, how would you rate the justice system in (your country) in terms of the independence of courts and judges? Would you say it is very good, fairly good, fairly bad or very bad?’, see: https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/eu-justice-scoreboard_en

(6)      Eurobarometer survey FL503, replies to the question: ‘Could you tell me to what extent each of the following reasons explains your rating of the independence of the justice system in (our country): very much, somewhat, not really, not at all?’ if reply to Q1 is 'fairly bad' or 'very bad'.

(7)      Eurobarometer survey FL504, conducted between 17 and 24 January 2022. Replies to the question: ‘From what you know, how would you rate the justice system in (our country) in terms of the independence of courts and judges? Would you say it is very good, fairly good, fairly bad or very bad?’, see: https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/eu-justice-scoreboard_en ; from 2021, the sample size of companies surveyed was enlarged to 500 for all Member States except for MT, CY and LU, where the sample was 250. In previous years the sample size was 200 for all Member States except for DE, ES, FR, PL and IT, where the sample was 400.

(8)      Eurobarometer survey FL504; replies to the question: ‘Could you tell me to what extent each of the following reasons explains your rating of the independence of the justice system in (your country): very much, somewhat, not really, not at all?’ if the response to Q1 was 'fairly bad' or 'very bad'.

(9)      Eurobarometer survey FL504; replies to the question: 'To what extent are you confident that your investments are protected by the law and courts in (your country) if something goes wrong?' For the purpose of the survey, investment was defined as including any kind of asset that a company owns or controls and that is characterised by the commitment of capital or other resources, the expectation of gain or profit or the assumption of risk.

(10)      Eurobarometer survey FL504; replies to the question: 'What are your main reasons for concern about the effectiveness of investment protection?' if the response to Q3 was 'fairly unconfident' or 'very unconfident'.

(11)      See Court of Justice, judgment of 16 November 2021, Criminal proceedings against WB and Others, Joined Cases C-748/19 to C-754/19, para. 67, judgment of 6 October 2021, W.Ż., C-487/19, para. 109, judgment of 15 July 2021, Commission v. Poland, C-791/19, para. 59, judgment of 2 March 2021, A.B., C-824/18, para.117, judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C-585/18, C-624/18 and C-625/18, ECLI:EU:C:2019:982, paras. 121 and 122; judgment of 24 June 2019, Commission v. Poland, C-619/18, ECLI:EU:C:2019:531 paras. 73 and 74; judgment of 25 July 2018, LM, C-216/18 PPU, ECLI:EU:C:2018:586, para. 66, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, para. 44. See also paragraphs 46 and 47 of the Recommendation CM/Rec(2010)12 Judges: Independence, Efficiency and Responsibility (adopted by the Committee of Ministers of the Council of Europe on 17 November 2010) and Explanatory Memorandum, which provide that the authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.

(12)      See Court of Justice, judgment of 2 March 2021, A.B., C-824/18, para. 119, judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C-585/18, C-624/18 and C-625/18, ECLI:EU:C:2019:982, para. 123; judgment of 24 June 2019, Commission v. Poland, C-619/18, ECLI:EU:C:2019:531 para. 112.

(13)      See Recommendation CM/Rec(2010)12 Judges: Independence, Efficiency and Responsibility, adopted by the Committee of Ministers of the Council of Europe on 17 November 2010 and Explanatory Memorandum (‘the Recommendation CM/Rec(2010)12’).

(14)      The figures are based on the responses to an updated questionnaire drawn up by the Commission in close association with the ENCJ. Responses to the updated questionnaire from Member States that have no Councils for the Judiciary, are not ENCJ members, or their ENCJ membership has been suspended (CZ, DE, EE, CY, LU, AT, and PL) were obtained through cooperation with the Network of the Presidents of the Supreme Judicial Courts of the EU. Safeguards regarding prosecutors in Figure 57 are based on responses to an updated questionnaire drawn up by the Commission in close cooperation with the Expert Group on Money Laundering and Financing of Terrorism.

(15)      The figures are based on responses to an updated questionnaire drawn up by the Commission in close cooperation with the Expert Group on Money Laundering and Financing of Terrorism.

(16)      Venice Commission, Opinion no. 819/2015 on the Draft law on integrity checking in Ukraine, CDL-AD(2015)031, 25 October 2015, para. 40, and Venice Commission, Opinion No. 789/2014, Amicus Curiae Brief for the Constitutional Court of Moldova on certain provisions of the law on professional integrity testing, CDL-AD(2014)039-e, 15 December 2014, para. 14.

(17)      “[T]he authority of a judiciary can only be maintained if (a) the legal system puts in place adequate mechanisms to ensure that candidates are not appointed as a judge if they do not have the required competences or do not meet the highest standards of integrity; and (b) the judiciary is cleansed of those who are found to be incompetent, corrupt or linked to organised crime.”, Venice Commission, Opinion no. 1073/2021 on the Introduction of the procedure of renewal of security vetting through amendments to the Courts Act, CDL(2022)002, 18 March 2022, para. 14.

(18)      Venice Commission, CDL-AD(2016)007, Rule of Law Checklist, para. 74.

(19)      Venice Commission, Opinion no. 1073/2021 on the Introduction of the procedure of renewal of security vetting through amendments to the Courts Act, CDL(2022)002, 18 March 2022, para. 13.

(20)      Venice Commission, CDL-AD(2021)046, Republic of Moldova - Joint opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on some measures related to the selection of candidates for administrative positions in bodies of self-administration of judges and prosecutors and the amendment of some normative acts, para. 16.

(21)      Data collected through an updated questionnaire drawn up by the Commission in close association with the ENCJ. Responses to the updated questionnaire from Member States that have no Councils for the Judiciary, are not ENCJ members, or whose ENCJ membership has been suspended, were obtained through cooperation with the NPSC.

(22)      Recommendation CM/Rec(2010)12, para. 22.

(23)      Recommendation CM/Rec(2010)12, para. 23.

(24)      Venice Commission, Report on the independence of the judicial system, Part I: the independence of courts, Study No. 494/2008, 16 March 2010, CDL-AD(2010)004, paras. 68 - 72.

(25)      Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).

(26)      Court of Justice, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Office of Lübeck and Zwickau), Joined Cases C-508/18 and C-82/19 PPU, paras 73, 74 and 88, ECLI:EU:C:2019:456; judgment of 27 May 2019, C‑509/18, para 52, ECLI:EU:C:2019:457; see also judgments of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours), in Joined Cases C-566/19 PPU and C-626/19, ECLI:EU:C:2019:1077; Openbaar Ministerie (Swedish Prosecution Authority), C-625/19 PPU, ECLI:EU:C:2019:1078, and Openbaar Ministerie (Public Prosecutor in Brussels), C-627/19 PPU, ECLI:EU:C:2019:1079; judgment of 24 November 2020, AZ, C-510/19, para 54, ECLI:EU:C:2020:953. See also judgment of 10 November 2016, Kovalkovas, C-477/16 PPU, paras 34 and 36, ECLI:EU:C:2016:861, and judgment of 10 November 2016, Poltorak, C-452/16 PPU, para 35, ECLI:EU:C:2016:858, on the term ‘judiciary’, ‘which must […] be distinguished, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, from the executive’. See also Opinion No. 13(2018) Independence, accountability and ethics of prosecutors, adopted by the Consultative Council of European Prosecutors (CCPE), recommendation xii.

(27)      CDL-AD(2010)040-e Report on European Standards as regards the Independence of the Judicial System: Part II - the Prosecution Service - Adopted by the Venice Commission - at its 85th plenary session (Venice, 17-18 December 2010), para. 26.

(28)      Consultative Council of European Prosecutors (CCPE) Opinion No. 15 (2020) on the role of prosecutors in emergency situations, in particular when facing a pandemic.

(29)      Consultative Council of European Prosecutors (CCPE) Opinion No. 16 (2021) on the Implications of the decisions of international courts and treaty bodies as regards the practical independence of prosecutors, para. 13.

(30)      Consultative Council of European Prosecutors (CCPE) Opinion No. 16 (2021) on the Implications of the decisions of international courts and treaty bodies as regards the practical independence of prosecutors, para. 13.

(31)      Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, adopted by the Committee of Ministers of the Council of Europe on 6 October 2000 (the 2000 Recommendation), para. 4.

(32)      The 2000 Recommendation, paras 11 and 13. See also: Opinion No. 13(2018) Independence, accountability and ethics of prosecutors, adopted by the Consultative Council of European Prosecutors (CCPE), recommendations i and iii; Group of States against corruption (GRECO), fourth evaluation round 'Corruption prevention - Members of Parliament, Judges and Prosecutors', a vast number of recommendations ask for the introduction of arrangements to shield the prosecution service from undue influence and interference in the investigation of criminal cases.

(33)      The 2000 Recommendation, para. 13, point c).

(34)      The 2000 Recommendation, para. 13, point d).

(35)      The 2000 Recommendation, para. 13, point f). See also Opinion No. 13(2018) Independence, accountability and ethics of prosecutors, adopted by the Consultative Council of European Prosecutors (CCPE), recommendation iv.

(36)      The 2000 Recommendation, para. 34.

(37)      CDL-AD(2010)040-e Report on European Standards as regards the Independence of the Judicial System: Part II - the Prosecution Service - Adopted by the Venice Commission - at its 85th plenary session (Venice, 17-18 December 2010), para. 45.

(38)      CDL-AD(2010)040-e Report on European Standards as regards the Independence of the Judicial System: Part II — the Prosecution Service — Adopted by the Venice Commission — at its 85th plenary session (Venice, 17-18 December 2010), para. 45.

(39)      Victim, as defined by Article 2 of the Directive 2012/29/EU of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, means a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence, or family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person's death.

(40)      2020 Rule of Law Report - Communication from the Commission on the rule of law situation in the European Union, p. 13, and Council non-paper 8478/21 of 12 May 2021, available at https://data.consilium.europa.eu/doc/document/ST-8478-2021-INIT/en/pdf  

(41)      “Lawyers play an important role in protecting the rule of law and judicial independence, while respecting the separation of powers and fundamental rights.”, ‘Access to a lawyer and rule of law’, Presidency discussion paper for the meeting of the Justice and Home Affairs Council on 3 and 4 March 2022: https://data.consilium.europa.eu/doc/document/ST-6319-2022-INIT/en/pdf

(42)      Recommendation No. R(2000)21 of the Committee of Ministers of the Council of Europe.

(43)      2021 data collected through replies by CCBE members to a questionnaire.