EUROPEAN COMMISSION

Brussels, 1.12.2021

SWD(2021) 392 final

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT REPORT

Accompanying the document

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation

and


Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on amending Council Directive 2003/8/EC, Council Framework Decisions 2002/465/JHA, 2002/584/JHA, 2003/577/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA, 2008/947/JHA, 2009/829/JHA and 2009/948/JHA, and Directive 2014/41/EU of the European Parliament and of the Council, as regards digitalisation of judicial cooperation

{COM(2021) 759 final} - {SEC(2021) 580 final} - {SWD(2021) 393 final}

Table of contents

1.Introduction: Political and legal context

2.Problem definition

2.1.What is the problem?

2.1.1.    Inefficient cross-border judicial cooperation    

2.1.2.    Barriers to access to justice in cross-border cases    

2.2.What are the problem drivers?

2.2.1.    Different level of digitalisation and voluntary use of existing digital channels    

2.2.2.    Recognition of electronic signatures/seals and legal validity/acceptance of electronic documents    

2.2.3.    Language barriers    

2.2.4.    Non-resilience of judicial systems to force majeure circumstances    

2.3.How will the problem evolve?

3.Why should the EU act?

3.1.Legal basis

3.2.Subsidiarity: Necessity of EU action

3.3.Subsidiarity: Added value of EU action

4.Objectives: What is to be achieved?

4.1.General objectives

4.2.Specific objectives

5.What are the available policy options?

5.1.What is the baseline from which options will be assessed?

5.2.Description of policy options

5.3.Options discarded at an early stage

6.What are the impacts of the policy options?

7.How do the options compare?

8.Preferred option

9.How will actual impacts be monitored and evaluated?

Annex 1: Procedural information

Annex 2: Stakeholder consultation

2.1. Summary of the feedback on the Roadmap

2.2. Public consultation results

Results of the public consultation

Annex 3: Who is affected and how?

Annex 4: Analytical methods

Annex 5: COVID19 impact on civil proceedings – national measures

Annex 6: Statistical data on the use of the e-Justice portal

Annex7: The standard cost model for estimating administrative costs

Annex 8: What are the problems and their causes?

Glossary

1.Introduction: Political and legal context

Today’s constantly expanding and evolving digital environment influences not only our daily lives and social contacts, but also the functioning of state institutions, including the judiciary. The ubiquitous process of digital transformation has tremendous potential to facilitate and accelerate judicial proceedings, including judicial cooperation across borders.

The aim of digitalisation in this area is to improve access to justice, cooperation between judicial authorities in cross-border cases, and the efficiency and resilience of justice systems. In order to further e-Justice at EU level, the Council of the EU has adopted a series of strategies and action plans in the past few decades, most recently the e‑Justice strategy for 2019-2023 2 and the associated action plan for 2019-2023 3 .

The digitalisation of justice is part of the work to create “A Europe fit for the digital age”, as set out in the “Political Guidelines for the next European Commission 2019-2024” 4 . The Commission’s guidelines acknowledge the central role that it, and the public sector in general, can play in stimulating the digital transformation process. e‑Justice is also seen as central to post-COVID recovery 5 in improving access to justice and thus enhancing the business environment. More recently, the digitalisation of justice systems was deemed a key reform area in the context of the Recovery and Resilience Facility 6 .

The Commission developed its vision of the EU’s digital transformation by 2030 in its communication “2030 Digital Compass: the European way for the Digital Decade” 7  (9 March 2021). The Communication points out that digital transformation enables modern, efficient justice systems, the protection of consumer rights and more effective public action, partly through better law enforcement and investigation capacities (which must be equipped as well as possible to deal with increasingly sophisticated digital crimes).

The 2020 Strategic Foresight report 8 recognises the crucial importance of the digital transformation of public administrations and justice systems throughout the EU. The transition should work for everyone, putting people first and opening up new opportunities for all types of stakeholder. It should therefore address a broad range of issues.

In its July 2020 Security Union Strategy, the Commission committed to specific actions to enable law enforcement and justice practitioners to adapt better to new technology, thanks in particular to new tools, skills and investigative techniques.

At the beginning of June 2021, the Commission adopted a proposal for amending the e‑IDAS Regulation 9  to establish a framework for a European digital identity 10 . The proposal addresses the increased private and public sector demand for electronic identity solutions that rely on specific attributes and ensure a high level of trust across the EU. The envisaged digital identity wallet storing attributes and credentials will allow individuals and legal entities to access public services.

The European Council 11 and the European Parliament 12 both recognised the pivotal role of digitalisation in helping to relaunch and modernise the EU economy following the COVID‑19 crisis.

On 9 June 2020, the Council adopted conclusions on “Shaping Europe’s digital future” 13 , which recognise that ‘the digitalisation of the justice systems of the Member States has the potential to facilitate and improve access to justice throughout the EU’. The Council calls on the Commission ‘to facilitate the digital cross-border exchanges between the Member States both in criminal and civil matters and to ensure the sustainability and ongoing development of the technical solutions which have been developed for cross‑border exchanges’.

The October 2020 Council conclusions on “Access to justice – seizing the opportunities of digitalisation” 14 call on the Commission to take concrete action to digitalise justice, including by:

·examining the potential for modernising the core provisions of instruments in civil and commercial matters in line with the ‘digital by default’ principle; and

·considering to which judicial cooperation instruments in criminal matters the e‑Evidence Digital Exchange System (eEDES) might be extended. 

The December 2020 Council conclusions on the European arrest warrant (EAW) underline that digitalisation should play a central role in the operation of the EAW 15 .

In November 2020, the Parliament and the Council adopted recasts of the Service of Documents Regulation 16 and the Taking of Evidence Regulation 17 . These require Member States’ competent authorities to communicate with each other by electronic means (e.g. to exchange standardised forms, documents, etc.).

The work on the two Regulations was closely linked with the Commission’s overall priority of digitalisation and e‑Justice and the parallel work in the field of criminal justice 18 . Following the Commission’s proposals in 2018 19 , the co-legislators are negotiating a legislative framework on cross-border access to e-evidence. In this context, the Commission’s proposals already highlight the importance of electronic platforms, e.g. for the submission of requests, the authentication of orders and responses by service providers 20 . The legislative framework established by the e-evidence proposal in criminal matters will rely on adigital channel for communication similar to the one considered in this initiative, for obtaining evidence from internet service providers.

In December 2020, the Commission adopted a Communication on the digitalisation of justice in the EU, 21  proposing a toolbox approach, i.e. a set of measures promoting digitalisation both for cross-border exchanges and at national level. It addressed the modernisation of the legislative framework for EU cross-border procedures in civil, commercial and criminal law, in line with the ”digital by default” principle, while ensuring all necessary safeguards e.g. to avoid social exclusion. The Commission will be proposing legislation on digitalising cross-border judicial cooperation procedures in civil, commercial and criminal matters, as announced in its 2021 work programme 22 (see ”digital judicial cooperation” package). This is the flagship initiative of the “digital judicial cooperation package”. The package includes a proposal for amendments of the European Judicial Counter Terrorism Register and a proposal for the establishment of an IT platform to support the Joint Investigations Teams. All three initiatives aim at digitalising processes by employing different tools designed to serve the purposes of the respective procedures covered by them.

The e-CODEX system is a suite of software components for EU judicial cooperation, developed by a consortium of Member States and co-financed by the Commission. It supports secure communication in civil and criminal proceedings by enabling the secure cross-border exchange of electronic messages and documents. Together with the December 2020 Communication (see above), the Commission adopted a legislative proposal for a Regulation of the European Parliament and of the Council on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system). It establishes a legal basis for the e-CODEX system and guarantees its sustainability and future management by entrusting it to the European Union Agency for the Operational Management of Large‑Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) 23 . The e‑CODEX system would thus be the most suitable tool for the digitalisation of cross‑border judicial cooperation procedures. The Council has reached agreement on a general approach on the Commission’s proposal 24 .

2.Problem definition

2.1.What is the problem?

This initiative aims to tackle two main problems:

·inefficient cross-border judicial cooperation; and

· barriers to access to justice in cross-border cases.

There is a comprehensive set of EU‑level instruments designed to enhance judicial cooperation and access to justice in cross-border civil, commercial and criminal cases. Many of these provide a legal basis for communication between authorities, including Justice and Home Affairs agencies and EU bodies, and between authorities and individuals or legal entities. However, most of them do not provide for engaging in such communication through digital means. Even where they do, as is the case with the Small claims regulation or European order for payment regulation, which foresees the possibility for communication via e-mail or other electronic means, the use of such means depends on the law of the Member States involved in the case. In addition, other gaps exist, such as the lack of secure and reliable digital communication channels or the non‑recognition of electronic documents, signatures and seals. e-CODEX, for example, is a system for secure communication in cross-border judicial cooperation procedures. However, the proposal for a Regulation governing e-CODEX only aims to establish a legal basis for e-CODEX and to regulate its governance and maintenance. It would not prescribe practical cases of application, which is to be achieved through this initiative. All this deprives judicial cooperation and access to justice of the use of the most efficient, secure and reliable channels available.

These problems directly impact the national authorities’ ability to process cases (including the cross-border ones). National courts received (as per the 2021 EU Justice Scoreboard) an average of 2.3 new cases per 100 citizens in 2019, when the average duration of civil and commercial cases was around 247 days in the first instance 25 . The latter figure does not reflect the fact that cases took on average twice as long in some countries 26 and that final resolution often involves a long appeal process before the higher courts, which in some cases can take more than 7 years 27 . A Council of Europe study 28  has concluded that the length of court proceedings in both civil and criminal cases (which affects the basic right to a fair trial) still constitutes a major concern Europe-wide. Considering the volume of cases and the need to resolve them expediently, digital tools that make judicial authorities more efficient, including in their communication between each other and with individuals/legal entities, are key for a well‑functioning justice sector.

However, at national level, the infrastructure for digital communication does not always allow the use of modern communication technologies. The 2021 EU Justice Scoreboard 29 shows gaps in the provision of adequate infrastructure and equipment supporting secure electronic communication – 12 Member States do not have adequate infrastructure for electronic communication between courts and 19 Member States do not have such infrastructure for communication between prosecution offices. These gaps also affect the availability of digital infrastructure for use in cross-border cases as well as other issues specific to matters involving more than one Member State, such as the interoperability of communication systems, availability to foreign nationals, and rules governing identification and the legal validity of electronic documents and evidence. 

These in turn create problems such as procedural delays, limited access to courts and communication channels that are less effective, resilient and efficient than is technologically possible (involving extra costs, e.g. for sending registered letters, scanning documents and printing). Germany and Austria conducted a pilot project on the use of digital communication technologies for the European payment order 30 , which showed that the use of such technologies generally brought cost savings. It costs EUR 0.07 to send an electronic message, while postage for a registered letter is EUR 3‑5, without counting the extra time and costs for printing, scanning and archiving paper documents.

Another consequence of the lack of secure digital communication channels is the use of unsecure channels, such as e-mail. The impact assessment accompanying the Commission’s proposal for e-CODEX 31 identifies potential shortcomings of using unsecure channels (e.g. as regards long‑term sustainability, data integrity and possible data leaks) and software that does not meet the requirements of EU judiciaries. 

With regards to the security of the communication, the public consultation indicated data protection concerns as the second most important disadvantage of digitalisation of cross-border judicial cooperation with 50% of respondents considering it as a disadvantage (after cybersecurity with 63%) 32 . As a result of faster processing, the amount of personal data processed within a given timeframe (e.g. every year) may also increase.

The security of personal data processing is essential to protect data subjects. The e-CODEX system was designed specifically for the justice area, and uses encryption to ensure security. Using e-CODEX for cross-border exchanges would increase security and thereby mitigate the risk of security breaches. e-CODEX is therefore clearly an improvement compared to present exchanges using paper or unsecure e-mails.

In addition, the digitalisation of existing data exchanges will not introduce any new personal data categories compared to what is already exchanged today through traditional means, nor will it affect the existing data processing arrangements. The increased personal data processing would be solely the result of increased efficiency/effectiveness and simplification, rather than of the digitalisation itself. Moreover, compared to the paper channel the use of digital tools would provide better traceability and audit capabilities and the possibility for automatic enforcement of personal data retention policies – the timely removal of personal data, which no longer needs to be stored.

The above problems, along with their causes and consequences, are summed up in the problem tree (Figure 1), which shows the issues faced in cross-border cases by competent authorities, individuals and legal entities communicating with competent authorities in another Member State.

Figure 1:     Problem tree

2.1.1.Inefficient cross-border judicial cooperation

Efficient cross-border judicial cooperation involves secure, reliable and time-efficient communication between courts and competent authorities, to reduce administrative burden and increase resilience to force majeure circumstances. This is also central for individuals and legal entities, as the conduct of judicial proceedings in a reasonable time is a crucial aspect of the right to a fair trial, as enshrined in Article 47(2) of the EU Charter of Fundamental Rights. It is equally important for the effective and speedy prosecution of crimes. In addition, lengthy proceedings are problematic, because they trigger higher costs for defendants (lawyers’ fees, etc.) and longer detention times for individuals who have been arrested or are to be surrendered.

Data exchanges in cross-border cases – mainly those between competent authorities and with JHA agencies and EU bodies, but also procedures directly involving individuals and legal entities – are overwhelmingly paper-based and no IT system fully supports the communication process.

Among other disadvantages, the physical transmission of paper is inherently slow and relatively inefficient and unreliable. The average time declared by operators (postal services, carriers etc.) for posting a first-class letter in the EU-27 is 2 days (48 hours) and there are examples that this time may be much longer – between 3 to 15 days depending on the destination 33 . It also often involves the sender making hard copies of digitally native documents, which are subsequently digitised by the recipient. This generates significant additional work and sacrifices many of the advantages of digitally native documents, such as searchability, resolution (in the case of pictures), etc. Moreover, due to the advance of digitalisation in all areas of life (including archiving) and the external costs of printing (in an economy that must become more sustainable), the limited availability of printing services 34 may soon pose a practical threat to the traditional means of communicating with the judiciary. Paper-based transmission channels are also particularly vulnerable to crises, such as the COVID-19 pandemic, during which Member States’ lockdown measures have impeded access to courts and communication between competent authorities.

By way of example, at present the procedure for obtaining an EPO includes the following steps: The applicant accesses the e-Justice portal 35 to retrieve the standardised request form for issuing of an EPO and information regarding the competent court in the receiving Member State; The form is then filled in and, while online, automatically translated into the language accepted by the receiving Member State; The applicant prints the form, puts it in an envelope and goes to a post office (or a post box) to send it; On receipt of the request, the staff of the competent court in the receiving Member State have to register it manually (or, if there is an electronic case management system, scan it and enter the relevant data), create a case file and assign it to a judge; The assisting judicial clerk brings the case physically to the judge (or, if there is an electronic case management system, the judge receives it as an electronic file);The judge delivers a decision (using a standardised form), which is then printed, registered (manually or electronically) and sent to the applicant in the same way as the initial request was sent; The case is manually archived by the court staff.

Currently, it is generally not possible to automate this process. However, this could be achieved by incorporating multilingual standard forms in the IT system, which would allow their automated generation, extraction of data from the database and automatic translation of the standardised content into all EU languages. It would also improve searchability, by making it easier to store data and retrieve it from the existing database. Automating the processing of EPO requests would significantly alleviate the administrative burden of processing them, making cross‑border proceedings much more efficient.

Ultimately, the current delays mostly affect parties to the proceedings (individuals and legal entities) and their ability to protect and assert their rights effectively. Furthermore, the 2021 EU Justice Scoreboard states that reducing the length of court proceedings by just 1% (measured in disposition time) could boost firms’ growth. Even such a minimal improvement is associated with higher trade turnover and productivity growth. In criminal law, access to justice across borders is particularly problematic for victims of crime and defendants. Lengthy periods spent by foreign suspects in pre‑trial detention may be partly a result of the time it takes competent authorities to exchange European investigation orders (EIOs) 36 through traditional paper‑based channels. Excessively long proceedings and high legal costs deter or even prevent victims from asserting their rights by taking cases to court 37 .

During the COVID-19 pandemic, courts have been unable to maintain normal operations. The European judicial network in civil matters (EJN-civil), as the main EU body mandated with facilitating cross-border cooperation in civil and commercial cases, has produced a comparative table on the pandemic’s impact showing that Member States were forced to take a number of measures in relation to judicial authorities, ranging from complete shutdowns to treating certain priority cases only 38 . Meanwhile, activities that could be conducted digitally (e.g. by e-mail, videoconference, etc.) continued uninterrupted. However, these solutions often did not satisfy common security, interoperability, data protection and fundamental rights standards, nor could all Member States guarantee the procedural acceptance or effect of communications, due to the lack of harmonised EU-level rules. Judicial cooperation therefore needs to be made less dependent on external factors.

2.1.2.Barriers to access to justice in cross-border cases

As a basic principle of the rule of law, ‘access to justice’ involves individuals and legal entities being able to rely on effective procedures and accessible remedies for the protection of their rights. However, mere access to judicial authorities does not automatically constitute effective access to justice. What needs to be safeguarded is the effectiveness of the procedures and the elimination of practical difficulties. Individuals and legal entities should be able to protect their rights and have their obligations determined in a swift, cost-effective and transparent way. Otherwise, bottlenecks such as prolonged procedures, geographical distance and red tape (excessive bureaucracy and adherence to statutory rules and formalities) impair access to justice and the right to an effective judicial remedy. In addition, the pandemic has shown that force majeure circumstances can severely inhibit the normal functioning of judicial systems. These general problems constitute barriers to access to justice, which could be mitigated by increased digitalisation of judicial procedures.

The use of paper files and traditional transmission channels continues to dominate national and cross-border judicial proceedings 39 . According to the findings of the national legal mapping conducted for the supporting study, in most Member States paper-based communications constitute the majority of all cross-border communications between courts/competent authorities of the Member States and between the latter and parties to proceedings 40 . Stakeholders point to the challenges created by the current paper-based exchange of documents and deem it important to be able easily to submit documents digitally and receive information from relevant authorities in a digital format 41 . 

However, there are no harmonised arrangements at EU level whereby individuals and legal entities can make and accept electronic submissions in cross-border cases. This state of affairs is in stark contrast to the increased use of digital tools in our everyday lives. It is particularly striking in a Europe of open borders, where individuals and legal entities can find themselves involved in litigation before the court of another EU country.

The lack of digital tools can curtail access to justice in many other ways, especially in cross-border cases, where geographical distance, language differences and a lack of experience of a foreign legal system can make it very cumbersome and expensive. This is particularly true for people in remote or rural areas, or those affected by disability or vulnerability. Attending oral hearings in person is often considered stressful and time‑consuming. In criminal cases, remote video hearings may avert the need for surrender under an EAW and thus for long periods of pre-trial detention in a foreign country. Consumers and small (or even medium-sized) businesses may face disproportionate extra obstacles in pursuing low-value claims in civil cases that deter them from initiating a cross-border procedure. Delays caused by the lack of effective digital communication also impair effective access to justice.

For instance, the evidence gathered in the study supporting the Impact Assessment 42 indicated that victims and defendants risk being deterred or unable to enforce their rights by taking cases to court in cross-border cases. The results of the public consultation also indicate that there are barriers to access to justice which could be reduced by better use of digital tools. More than 80% of the respondents to the public consultation agree that the use of digital tools would lead to better accessibility of information and easier access to judicial procedures (≈86%). Additionally, respondents agree that it would result in time savings for both administrations and citizens/businesses (≈87%), and in lower costs of handling cases both for administrations and citizens/businesses (≈81%).

2.2.What are the problem drivers?

The problems described above are the result of factors explored in this section. A detailed description of the problem drivers may be found in Annex 8.

2.2.1.Different level of digitalisation and voluntary use of existing digital channels

Degrees of digitalisation vary across the Member States 43 , although all EU countries improved their digital performance in 2020 44 , with Finland, Sweden, Denmark and the Netherlands scoring highest, followed by Malta, Ireland and Estonia. However, a higher ranking on digital performance does not always mean that a Member State’s digital services will be available in cross‑border cases.

The 2021 EU Justice Scoreboard 45 highlighted the different degrees to which judiciaries in the EU use the digital channel. The relevance of this issue was confirmed by the study carried out to support this impact assessment 46 , with 49% of national stakeholders responding to a questionnaire seeing it as a barrier to digital communication. An additional 37.3% considered it a ‘somewhat relevant’ obstacle.

The e-CODEX system developed by the Member States is a good tool for the digitalisation of cross-border judicial procedures. However, although its geographical coverage is expanding and the number of users increasing 47 , actual uptake by Member States remains low. This has led to fragmentation and continued inefficiencies, including the use of the paper channel, with its attendant costs and environmental impact 48 . The fragmentation also affects individuals’ and legal entities’ access to justice. Moreover, the fact that digitalisation is voluntary means that there is no guarantee that all Member States will be interconnected in the future.

One of the main reasons for the fragmented use of digital tools for cross-border communication is the voluntary participation in cooperation initiatives. Even where digital communication is foreseen in EU legislation, there is currently no uniform legal and technical framework for employing it nor for the acceptance of such communication. Efforts to establish voluntary digital communication channels have been ongoing since 2009 with limited success. This is evidenced by the fact that, to date, cross-border digital exchanges are based on bilateral implementation of the e-CODEX system with little uptake from the Member States. As of February 2020 only 6 Member States participate in the e-CODEX European order for payment pilot and 5 Member States participate in the Small claims pilot. The low voluntary participation is not limited to e-CODEX – for instance the voluntary implementation of the insolvency registers interconnection was joined by only 9 Member States. At the same time a similar initiative, the Business Registers Interconnection (BRIS) for which the connection is mandatory, is joined by 26 Member States. Indeed, to our knowledge all successful EU-wide large-scale cross-border IT systems have been established on the basis of mandatory participation 49

2.2.2.Recognition of electronic signatures/seals and legal validity/acceptance of electronic documents

At present, there are no harmonised arrangements for the recognition of electronic signatures and seals in the area of cross-border judicial cooperation.

The e-IDAS Regulation defines electronic trust services and sets up a common EU regulatory framework for these (electronic signatures, electronic seals, time stamps, electronic delivery services and website authentication). Thus they are recognised across borders as having the same legal status as paper-based ones. The Regulation forms part of a predictable legal framework within which individuals, legal entities and public administrations can safely access services and carry out transactions online and across borders. e-IDAS solutions have reduced red tape for individuals and generated savings for businesses.

However, unless explicitly referred to, the Regulation does not cover the provision of services used exclusively within closed systems between a defined set of participants with no effect on third parties. Currently, there is no such reference in any of the applicable civil, commercial and criminal law instruments providing for judicial cooperation or access to justice and included in the intended coverage of this initiative. Therefore, and in the absence of legislation Member State participating in e-CODEX pilots carried out to date were compelled to conclude ad hoc so-called “circle-of-trust” agreements, to ensure that electronic documents and signature/seals would be recognised in the pilot procedures. The legal validity of such agreements in the respective national systems is however doubtful.

Even the seamless recognition of electronic signatures and seals across borders would not automatically result in the recognition of electronic documents. The legal validity and admissibility of documents transmitted electronically during judicial proceedings may be called into question by receiving Member States if not recognised in their national law. The experience clearly show that developing digital solutions without providing a legal basis for their use does not serve as an incentive for the MS to use these solutions.

The issues of voluntary participation, non-recognition of electronic documents, signatures and seals and the lack of interoperability standards and tools were also recognised as key barriers by the consulted stakeholders for the purposes of the study. Respondents (≈82%) noted that such issues hamper the use of digital solutions in the communication between the competent authorities of the Member States and between those authorities and parties to the proceedings in civil and commercial cross-border proceedings (the conclusions are similar for the criminal cases). The legal validity and admissibility of documents transmitted electronically to another Member State is a relevant barrier for ≈74%. The fact that electronic signatures/seals used by the issuing Member State may not be recognised by the receiving Member State is considered as a relevant barrier to digitalisation by ≈71% of the stakeholders. The lack of interoperability at international level (e.g. with the IT systems of the courts of other Member States) is also a relevant barrier to the digitalisation for ≈79% of the consulted stakeholders. The public consultation demonstrated a similar result.

2.2.3.Language barriers

Stakeholders point to language barriers as a problem in cross-border judicial cooperation 50 , e.g. the issuing authority might need to translate documents into a language accepted by the receiving authority. Also, language issues mean that individuals are often not at ease when involved in judicial proceedings in another Member State. 

In cross-border litigation, serious problems can arise when one or more of the parties is unfamiliar with the official language of the court. As a consequence, interpreters must often be used during trials and hearings, and the law has to determine whether a given document has to be translated.

For example, in low‑value cases (e.g. involving a traffic fine to be paid by a foreign tourist), language could constitute a barrier to access to justice. A person receiving legal documents in a foreign language might consider it cheaper to pay the fine than to contest it and incur disproportionate translation costs.

2.2.4.Non-resilience of judicial systems to force majeure circumstances 

The COVID-19 crisis has considerably impacted the functioning of Member States’ justice systems and EU cross-border judicial cooperation. Many cross‑border and national procedures have had to be suspended, de facto depriving many individuals and legal entities of effective access to justice. The pandemic has emphasised the need for further efforts towards the digitalisation of justice, including closer cooperation between Member States and with international partners, and the need to promote best practices in this area.

2.3.How will the problem evolve?

Data on the frequency and trends in regards to cross-border exchanges in civil and criminal matters has been collected in the context of the supporting study 51 . However, due to the lack of a harmonised statistical framework, the gaps in the data do not allow for conclusions about trends in cross-border cooperation to be made.

This being said, it should be pointed out that the problem drivers above are linked to the increased EU mobility, primarily in the context of tourism, e-commerce, study abroad etc. There is a significant number of people who cross borders for the purposes of tourism – 64.7% of EU citizens aged 15 or more did so in 2019 and there is an upward trend in the number of nights that tourists spend in a country other than their own (from 100 in 2005 to 157.8 in 2019 52 ). Furthermore, by relying on the internet (which knows no borders), including for their work, individuals are increasingly exposed to situations that can lead to cross-border disputes. The number of people living in a foreign country is also trending upwards – Eurostat has found that, in 2019, 3.3% of EU citizens of working age (20 to 64) lived in another Member State, as compared to 2.4% in 2009 53 . There is no hard evidence that the number of people living or working in a Member State other than their own increases the number of cross‑border disputes. However, there is likelihood of correlation between the number of people travelling between their place of residence and their country of origin and the number of the cross-border cases. With more and more people finding themselves in a cross-border situation, it is to be expected that the number of cross-border litigations will increase, placing an even greater burden on judicial systems. 

This trend is indirectly evidenced in the constant growth in the number of users of the e‑Justice portal, from 12 934 in January 2019 to 40 555 in June 2021 in the criminal law area and from 44 632 in February 2019 to 97 971 in June 2021 in the civil law area 54 . There is no complete data on the number of cross-border cases as such statistics is often not prepared by the Member States. However, the size of the problem could be visualised by the number of cross-border cases, presented in more detail in Annex 7. For example, the number of exchanges of e-CODEX messages between Austria and Germany in the first quarter of 2021 on the European order for payment amounts to 574 messages sent from Germany to Austria and 863 messages sent from Austria to Germany. On an annual basis, Sweden, receives between 200 and 300 requests for issuing an European order for payment and 300 European arrest warrants.

This tendency is likely to result in an increased workload for courts and a greater weight of expectation on them to deliver justice, provide individuals/legal entities with information, accept submissions and communicate with other authorities. A similar trend can be expected for other competent authorities dealing with cross-border judicial cooperation, such as central authorities, notaries and bailiffs.

New technologies have the potential to make judicial systems more efficient in this regard, by easing the administrative burden, shortening case‑processing times, making communication more secure and reliable, and partially automating case handling. However, the development of national IT solutions independently by the Member States, leads to a fragmented approach with a lack of interoperability. Even where common digital solutions are developed at EU level, their uptake in cross-border judicial cooperation procedures can be expected to advance slowly and in an uncoordinated manner while participation remains voluntary. This contrasts with rapid digitalisation in the private and commercial sector, which has been further accelerated by the COVID-19 pandemic. Individuals and legal entities (in particular, businesses) would benefit from having their rights protected and their obligations enforced by the kind of digital means that they are used to in their everyday private or commercial activity. A continued lack of uniform digital tools to fully support cross-border judicial cooperation will probably reinforce or maintain the tendency to rely on paper‑based communication, which results in financial costs and negative environmental impacts – currently the average cost per transaction is EUR 10.55 55 and estimations on an yearly basis show that 181 448 100 A4 standard 80g printing paper pages (out of which 31 833 000 for the individuals and legal entities) are used for communication purposes under the respective Union instruments with the overall average cost of EUR 2 216 160 (EUR 388 800 for individuals and legal entities) 56 . A continued lack of a coherent digital approach across Member States will also affect individuals’ and legal entities’ ability to use the most efficient tools to access justice. 

The ongoing e-CODEX pilot projects 57 demonstrate benefits for courts, competent authorities, individuals and legal entities. However, they do not involve all Member States, have not resulted in a sufficient increase in the use of digital tools for cross‑border cooperation and cross-border access to justice, and are insufficient in themselves to bring about a common EU-level approach.

3.Why should the EU act?

3.1.Legal basis

The use of digital channels for communication in cross border judicial proceedings would facilitate judicial cooperation in civil, commercial and criminal matters. Hence, the legal bases for this initiative are Articles 81 and 82 of the Treaty on the Functioning of the European Union (TFEU) .

More specifically, the use of digital channels for communication would facilitate judicial cooperation and the effective access to justice in civil matters in line with Article 81(2) of the TFEU. Article 82(1) of the TFEU is the legal basis for the Union to act in the field of judicial cooperation to facilitate the cooperation between Member States’ judicial or other competent authorities in relation to criminal proceedings and the enforcement of decisions. While Article 82(2) of the TFEU cannot constitute a legal basis for the adoption of regulations, it is a valid legal basis for the proposed Regulation, since the Regulation will amend existing directives based on Article 82(2), both through its horizontal digitalisation provisions and through certain alignment amendments.

3.2.Subsidiarity: Necessity of EU action

The above problems and their causes could have negative repercussions in terms of delays, security concerns and the reliability of communication in the processing of cross‑border cases. These could be mitigated by the use of modern technologies in the context of judicial case handling, be it in the area of civil, commercial or criminal law.

Under Article 4(1)(j) TFEU, the competence to adopt measures in the area of freedom, security and justice is shared between the Union and the Member States. Therefore, Member States may act alone to regulate the use of digital communication channels in the context of judicial cooperation and access to justice. However, experience shows that, without EU action, progress can be expected to be very slow and that, even where Member States take action, it is very difficult to ensure interoperability without EU intervention. In addition, cross-border matters are beyond the reach of individual Member States, as national legal action cannot be expected to reach past national borders. Therefore, the objective of this initiative cannot be achieved in a sufficiently harmonised manner by the Member States acting on their own, but only at EU level.

There are already EU‑level provisions on the conduct of communication, some of which even allow for the use of modern technology. However, none has ensured the creation of an adequate infrastructure for electronic communication from individuals, legal entities or competent authorities with the authorities of another Member State. Moreover, the provisions have not been adopted as a coherent whole on which judicial authorities can rely.

EU action is necessary in order to harmonise the Member States’ efforts and establish a coherent framework for the existing EU rules.

3.3.Subsidiarity: Added value of EU action

The added value of EU action lies in improving the efficiency, resilience, security and speed of cross‑border judicial procedures, by providing an impetus for the simplification and acceleration of communication between Member States’ authorities and with individuals and legal entities. Thus, the administration of justice‑related cases with cross‑border implications is expected to improve.

Additional added value arises from driving forward the digitalisation of EU judicial cooperation for all Member States, as compared with the present situation, where only certain groups of Member States have taken action, resulting in a limited and fragmented response to the identified problems. Even in digitally well‑advanced Member States, existing tools are not always available for cross-border cases. The digitalisation measures are also linked to existing instruments in the area of cross-border legal cooperation and aimed at improving how they function.

The establishment of an access point on the e-Justice portal would bring EU added value for individuals and legal entities who prefer to make submissions through a multilingual portal (with guidance in all EU languages) rather than through national portals, which will not necessarily have the same functionality.

4.Objectives: What is to be achieved?

4.1.General objectives

The general objective of the initiative is to improve access to justice and the efficiency of cross-border judicial cooperation by ensuring the establishment and seamless use of digital tools.

The COVID-19 crisis has shown the need for a more holistic approach to help modernise the European area of justice, make it resilient to emerging challenges, strengthen trust in Member States’ judicial systems and safeguard fundamental rights in the EU. In particular, the objective is to improve the efficiency of cross-border judicial cooperation in civil, commercial and criminal matters, and to enhance access to justice for individuals, legal entities and legal practitioners, while fully respecting fundamental and procedural rights, in particular the right to a fair trial and the rights of defence.

These objectives can be achieved by deploying digital technologies to improve the context within which the communication takes place.

4.2.Specific objectives

The following specific objectives are proposed in response to the problems identified above:

I.ensure the availability and use of electronic means of communication in cross‑border cases between Member States’ courts/competent authorities and relevant JHA agencies and EU bodies, where such communication is provided for in EU legal instruments on judicial cooperation;

II.enable the use of electronic means of communication in cross-border cases between individuals and legal entities, on the one hand, and courts and competent authorities, on the other; the possibility of individuals and legal entities to communicate in paper will be maintained.

III.facilitate the participation of parties to cross-border civil and criminal proceedings in oral hearings through videoconference or other remote communication technology, for purposes other than taking evidence in civil cases 58 ;

IV.ensure that documents are not refused or denied legal effect solely on the grounds of their electronic form (without interfering with the courts’ powers to decide on their validity, admissibility and probative value as evidence under national law); and

V.ensure the validity and acceptance of electronic signatures and seals for electronic cross-border judicial cooperation and access to justice.

The objectives of the proposed specific actions (operational objectives) are to ensure that the most rapid, secure and cost-effective technological solutions are used for communication in cross-border judicial cooperation procedures; ensure that exchanges of documents and data between courts/competent authorities of Member States and between the latter and parties to proceedings are executed expeditiously and efficiently; guarantee the legal validity of documents and commonly agreed types of electronic signatures/seals.

The intervention logic of the initiative, linking the policy options with the objectives and the problems that have been identified, is presented in Figure 2.

Figure 2:    Intervention logic

5.What are the available policy options?

The policy options that have been identified include a non-legislative recommendation and legislative action providing for optional or mandatory use of digital communication means (although individuals and legal entities would still have the choice of using traditional means). The options are described in detail below.

5.1.What is the baseline from which options will be assessed?

Option 0 (baseline scenario)

No action is taken to drive forward the digitalisation of cross-border judicial cooperation and the use of digital tools to improve access to justice.

Member States’ provision of a digital channel for cross‑border judicial procedures remains voluntary and no further action is taken at EU level. Individuals’ and legal entities’ ability to file and follow up claims electronically or through videoconferencing tools, and judicial and other competent authorities’ ability to exchange judicial documents electronically depend on the Member States involved, and the existence of bilateral agreements among them, and thus remains uncertain. Member States can continue to regulate the use of electronic signatures/seals and data protection responsibilities in diverging ways.

The likely consequences for the cross-border proceedings would be that interoperability and the lack of legal basis for digital services will remain an issue, which will prevent improving the efficiency of cross-border judicial cooperation. The uptake of digital communication technology would remain as demonstrated for the past use-cases. Existing barriers would remain, and access to justice, especially in case of force majeure circumstances would not be facilitated, which would lead to difficulties for the persons to ascertain their claims.

5.2.Description of policy options

Option 1 (Non-legislative option)

The Commission adopts a recommendation encouraging Member States to:

·enable and allow individuals and legal entities to make electronic submissions in cross-border cases through national IT systems and accept such electronic submissions from other Member States;

·allow parties to cross-border cases and their representatives (at their request) to participate in oral hearings by videoconference or other distance communication technology;

·incorporate standards on trust services in line with the e-IDAS Regulation; and

·allow for the electronic payment of court fees.

At the same time, the Commission continues to build and expand the use of eEDES (and the decentralised IT system for the recast Service of Documents and Taking of Evidence Regulations) for instruments in civil, commercial and criminal matters, without providing a legal basis for its use. The practice of allowing parties to attend hearings via videoconference remains regulated only at national level, as do arrangements for the recognition of electronic documents and the use of electronic signatures and seals. With regards to the language barriers identified above, the current arrangements would continue, meaning that where the applicable EU instruments require translation or interpretation, the regime will remain the same.

The Commission recommendation might include guidelines, but these remain non‑binding. Nevertheless, the recommendation would set certain standards to which the Member States may decide to adhere. That would be a step towards the establishment of compatible national IT systems.

Option 2 (Legislative option)

A legal instrument is adopted on the use of digital tools in the context of judicial cooperation and access to justice, including on the recognition and acceptance of electronic signatures and seals in cross-border civil, commercial and criminal cases.

The instrument includes provisions establishing a secure electronic channel based on e‑CODEX (identified as the most appropriate technical solution in the impact assessment on the Commission’s proposal for a Regulation on e‑CODEX 59 ). This channel will be used for communication and exchanging information, data and documents between courts and competent authorities, with and between central authorities, and where relevant the JHA agencies and EU bodies. Provisions are also introduced in support of communication between individuals and legal entities, on the one hand, and Member States’ courts and competent authorities, on the other. The responsibilities of different data controllers and processors are formally determined by clarifying that the competent authorities under national law are to be regarded as controllers within the meaning of Regulation (EU) 2016/679 and Directive (EU) 2016/680 with respect to personal data processing. A reference to the general legal framework established by Regulation (EU) 2016/679 and Directive (EU) 2016/680 is made.

Additional issues are addressed through suboptions in three areas, as set out below.

2.1 Removing barriers to cross-border judicial cooperation and introducing digital means supporting such cooperation (addressing specific objective i and iv).

The legislative option could either require the use of the established digital communication channel in cross-border judicial cooperation or leave it to the discretion of the Member States.

Common provisions would ensure the acceptance and legal validity of digital documents and evidence, and outline the data protection requirements inherent in cross-border communication.

Suboption 2.1.a     Voluntary use of digital channel

The legal instrument allows Member States’ authorities to use a common, decentralised IT system for the purposes of cross-border communication and exchange of information, data and documents with each other.

Suboption 2.1.b     Obligatory use of digital channel

The legal instrument requires Member States’ competent authorities (and central authorities established under EU law) and, where relevant, JHA agencies and EU bodies to use a common, decentralised IT system in communication with other Member States’ authorities in the context of judicial cooperation under the relevant EU law.

Such an obligation could be subject to well-defined and justified exceptions, such as force majeure, technical unavailability and the transportation of material that cannot be transferred via digital means (e.g. blood samples).

This option is based on the assumption that the IT systems for exchanges of EIOs and the service of documents/taking of evidence, as developed by the Commission, will be extended to cross-border judicial communication. Member States will be able to connect their national IT system to these or to use those developed by the Commission free of charge.

2.2 Introducing legal and technical measures supporting access to justice in cross‑border cases (addressing specific objectives ii, iii and iv)

As regards access to justice, the legislative proposal would introduce legal and technical measures governing digital communication between individuals and legal entities, on the one hand, and Member States’ competent authorities, on the other. This would include videoconferencing in cases other than taking of evidence in civil cases (which is already regulated in the Taking of Evidence recast regulation), as a means of access to justice.

In the context of criminal proceedings, adequate safeguards of the right to a fair trial must be ensured, such as:

·the right to a confidential consultation with a lawyer (‘Access to a Lawyer Directive’ 60 ) – the confidential interaction between lawyers and suspects or persons accused during any questioning must be ensured. The lawyer must be in a position personally and effectively to participate in any questioning. Speaking to a lawyer by videoconference cannot replace in-person counselling; 

·the right to be present (‘Presumption of Innocence’ Directive 61 ) – remote hearings should not be imposed without the consent of the suspect or accused person 62 ; and 

·the right to protection (Victims’ Rights Directive 63 ) – in order to avoid further victimisation, the detailed arrangements for hearings by videoconference, the location where the victim is heard, the presence of adequate in‑person support and other factors should all be taken into account.

In both civil and criminal cases, the parties’ participation in oral hearings via videoconferencing or other distance communication technology would be subject to the same standards as in-person hearings as regards interpretation and the conduct of the proceedings in a language that the party understands 64 .

Common provisions would ensure the acceptance and legal validity of electronic documents and evidence, and outline specific data protection requirements for cross‑border communication.

To facilitate access to justice, provisions would be introduced to allow for the online payment of court fees in EU cross-border cases.

Suboption 2.2.a     Voluntary acceptance of electronic communication

The legal instrument does not oblige Member States to allow electronic communication between individuals/legal entities and competent authorities. National law determines whether parties can take procedural action through digital means. Member States are free to decide whether:

·to accept electronic communication from individuals/legal entities;

·to develop a national solution for such submissions; or

·to use an EU-developed solution (e.g. ‘small claims submissions’ pilot through the e-Justice portal).

This option does not provide a legal basis for parties’ participation in oral hearings in cross‑border cases by videoconference. The development and use of such tools remains at the discretion of the Member States involved.

Suboption 2.2.b     Obligatory acceptance of electronic communication

The legal instrument obliges Member States to accept electronic communication between individuals/legal entities and competent authorities. Such communication takes place via an access point to be established on the e-Justice portal 65 or through portals at Member‑State level. This allows (but does not oblige) individuals/legal entities to file claims and communicate with courts (or other competent authorities) electronically in the context of the relevant EU law procedures. The access point is a user‑friendly tool accessible online at any time, in all Member States and in all EU languages, and is equipped with online guidance for filling in standardised forms and making submissions. Traditional, e.g. paper-based, means of communication are maintained for individuals/legal entities to use if they prefer.

This suboption also provides a legal basis for parties to cross-border cases, and their representatives on request, to participate in oral hearings by videoconference or other distance communication technology, subject to:

·the availability of such technology;

·the court’s discretion, depending on the circumstances of the case; and

·the parties’ consent.

In this case, the conduct of the oral hearing via videoconference or other distance communication technology is governed by the rules and procedures applicable to videoconferences for domestic cases.

2.3 Recognition and acceptance of electronic signatures and seals (addressing specific objective v)

For the purpose of the legal instrument, the use of electronic signatures and seals needs to be considered.

Suboption 2.3.a     Non-regulation of trust services

The legal instrument does not regulate the use of electronic trust services in the context of cross-border judicial cooperation and access to justice, allowing Member States to:

·develop their own methods and standards with regard to the use of electronic signatures and seals; and

·accept or reject communication from other Member States through the secure decentralised IT system, depending on national law and bilateral/multilateral trust agreements.

Suboption 2.3.b     Regulation of trust services

The legal instrument regulates the use of e-signatures and e-seals by explicitly referring to the e‑IDAS Regulation 66 , which would be needed in order to ensure the application of e-IDAS for communication in cross-border judicial procedures. It also clarifies the type of electronic signature or seal to be used for cross-border judicial procedures, i.e. simple, advanced or qualified by relying on the trust framework established by e-IDAS.

In this way, harmonised arrangements are set out for ensuring the admissibility and recognition of electronic signatures and seals where digital technology is used in the context of judicial cooperation or access to justice.

5.3.Options discarded at an early stage

A non-regulatory option involving a promotion campaign on the use of digital tools and e-CODEX for the purposes of communication in cross-border judicial procedures has been discarded. Such a campaign was considered not to constitute a real alternative to regulation and could in any case be carried out as part of the baseline scenario.

The option of establishing a centralised IT system for the electronic exchange of information and data was also discarded. While it may be technically feasible to leverage an existing centralised IT solution, such as the Internal Market Information (IMI) system, the Commission considers that it is not appropriate. On the other hand, e‑CODEX, which was chosen as the most suitable solution for cross-border exchanges, is decentralised by nature. In addition, the use of a centralised IT system would be difficult to justify from the point of view of proportionality and subsidiarity, as all information, data and documents would be stored on Commission servers or the servers of the entity managing the system (e.g. eu-LISA), while these would not be party to the exchange. Moreover, this could involve a single point of failure as all data is stored in one place compared to a decentralised system where data is stored by each Member State. It would also render more complex the integration with current and future national systems and their evolution alongside the centralised system. The development of such a system would require separate efforts or technical modifications (e.g. to the IMI system).

6.What are the impacts of the policy options?

The impacts of the policy options are discussed below.

The detailed analysis is presented in Annexes 1, 4 and 9, which set out the data sources, methodology and standard cost model computation that have been used.

Option 0 – Baseline scenario

If no action is taken, the objectives outlined in Section 4.2 will not be achieved, as the use of the digital channel of communication will remain voluntary for each Member State and there is no indication that the current limitations could be offset.

Concerning economic impacts, the status quo will be maintained. The cost of communication will remain at an average of EUR 10.55 67 per transaction 68 . The average time for delivering a first-class letter in the EU is 2 days (48 hours) 69 and this has been taken as an average for the time it takes to send a letter from one Member State to another Member State. However, anecdotal evidence 70 suggests that it actually takes much longer – between 3 and 15 days depending on the destination. We have used an average of 5 days per transaction. The time taken to process paper forms (i.e. registration, archiving, making copies, scanning) was estimated at 1.5 hours per transaction (45 min for sending and 45 min for receiving) 71 . Each transaction involves an average of 19.65 paper pages (the average length of the template forms for the cross-border instruments in question), at a cost of EUR 0.24 72 . We have assumed that at least three copies of each document are required during proceedings under each of the instruments: one that is sent, one kept in the file and one exchanged with the competent authority of the other Member State.

This will result in maintaining the status quo in terms of annual costs and transaction times in cross-border cooperation at EU level 73 , maintain the current economic impacts for individuals, legal entities, legal professionals and courts/authorities:

·EUR 32 472 900 for communication using physical formats (out of which EUR 5 697 000 for the individuals, legal entities); 

·15 390 000 days for communication by post or equivalent services (out of which 2 700 000 days for the individuals and legal entities);

·192 375 days in administrative overheads linked to paper processing which translates to 874 person-years in processing effort in courts;  and

·181 448 100 standard A4 80g paper pages printed (out of which 31 833 000 for the individuals and legal entities), at an overall average cost of EUR 2 216 160.

As regards fundamental rights, the barriers to access to justice and the challenges to cross-border judicial cooperation, as identified in Section 2, will remain. This refers to the inability of individuals and legal entities to ascertain their rights, specifically their right to seize authority or to be heard in person, where force majeure circumstances occur. Additionally, the length of the proceedings will remain unchanged and thereby affect the right to an effective trial.

The social impacts of the use of communication technology can be significant. The digital communication channel may improve public confidence in justice systems by speeding up access to justice and facilitating efficient functioning of the competent authorities. In the baseline scenario, these impacts would depend on the rate of uptake of the technology. It was demonstrated in Section 2 that the rate of uptake is low without a harmonised approach being implemented. For the baseline scenario no tangible change on the impacts could be expected for individuals and legal entities.

Under the baseline scenario paper based communication would continue, as would travel for the purposes of hearing. The above mentioned estimate of paper use per procedure would be maintained, together with the traveling. In particular, the main environmental impacts pertain to the use of non-renewable resources, due to paper-based communication and the transport of letters/parcels, on the one hand, and parties attending hearings in person, on the other hand. The environmental impacts of both elements are expected to increase in line with the likely rise in the number of cross-border proceedings.

It could be clearly concluded from the consultation activities that the stakeholders and Member States are overwhelmingly in favour of adopting a legislative act establishing a digital communication channel to be used on a mandatory basis by the courts and competent authorities. Providing individuals and legal entities with the possibility to communicate with courts and competent authorities electronically, while maintaining the paper communication and the possibility for remote hearings also enjoy a broad support among the consulted stakeholders. Legitimate concerns in terms of safeguarding fundamental rights, data protection, cybersecurity, protection of vulnerable groups, are considered under the proposed policy options.

Option 1 – Non-legislative option

The non-legislative option would involve action to persuade Member States to use e‑CODEX for cross-border judicial cooperation and access to justice. A Commission recommendation could encourage them to follow a harmonised approach with regard to the use of electronic communications, including videoconferencing, electronic documents, electronic seals and signatures. Given the voluntary nature of this approach, Member States would be free to develop digital tools on their own. Such action could be technically and operationally feasible, and cost‑effectiveness would depend on the individual Member States’ approach to digitalisation and on their needs and resources.

As regards the extent to which the option fulfils the objectives of the proposal, however, a recommendation would not guarantee any actual implementation of digital tools for communication, not to mention the interoperability of the digital channel, the acceptance of electronic documents and common standards of trust services. Therefore, any impacts of this option depend on the number of Member States which will follow the Commission recommendation and will adopt implementing measures for digital communication between the competent authorities and with the individuals and legal entities in the context of cross-border judicial procedures.

The current arrangements have shown that the voluntary approach to the digitalisation of the judiciary is not sufficient to ensure the availability of digital tools in all Member States so as to make them interoperable and readily available to all actors. Of the respondents to the questionnaire for national stakeholders, 82% saw voluntary participation as a ”relevant” or ”highly relevant” hurdle to the use of digital solutions in judicial cooperation. The approach resulted in a fragmented map of justice related digital services in the EU and there is no guarantee that a recommendation would improve the situation. The study supporting this impact assessment clearly demonstrates that differences between national IT solutions represent a barrier to cross-border judicial cooperation, which 57% of respondents considered as ”highly” problematic and another 23% as problematic “to a limited extent”.

Economic impacts: As regards the functioning of the internal market and the impact on businesses, SMEs included, it has been shown (see the 2021 EU Justice Scoreboard findings in Section 2.1.1) that company’s growth is closely linked to the effective operation and the efficiency of the judiciary. Such benefits cannot be guaranteed with a non‑legislative option.

Transaction costs and times in cross-border judicial cooperation, as presented in the baseline option, will start to decrease only when the first two Member States put in place interoperable IT systems fully supporting communication or if all Member States are fully digitising one procedure 74 . The voluntary initiatives of the past decade show a coverage of at most 1% of total transactions being carried out by digital means 75 . This has not been sufficient to produce any tangible cost savings, as most communication has been by traditional means. For the purpose of this assessment we will be using the calculation of the yearly benefits of digitising the European Payment Procedure as presented in the Impact Assessment of e-Codex. This is consistent with the current level of participation 76 in the e-Codex pilots which shows a maximum number of 6 Member States participating in a certain procedure. Therefore, it is safe to assume that any further voluntary cooperation can at best be approximated in terms of benefits with one procedure like the European payment order being fully digitised.

Based on tables 12 and 16 it will result that the costs for Member States will slightly decrease to:

·EUR 32 174 616 for communication using physical formats; 

·15 387 525 days for communication by post or equivalent services;

The e-Codex cost model do not offer us any indication of the savings in administrative costs or in paper. Impacts on fundamental rights: Digital communication cannot be effective and efficient in “asymmetrical” situations, i.e. it works only between entities that both have interoperable digital resources. If only one interlocutor has the necessary resources, communication has to take place in the traditional way. A particular cross-border instrument needs to be supported by the relevant digital tools for electronic communication to be possible. Otherwise, this would also jeopardise the effectiveness of voluntary cooperation.

With regards to the social impacts, the status quo would be maintained in case Member States do not follow the Commission recommendation. On the contrary, where Member States adopt digital technologies in line with the Commission recommendation, a positive social impacts such as increased public confidence in justice systems, improved access to justice and more efficient functioning of the competent authorities and the justice system as a whole, is to be expected. However, with an increased adoption of digital communication technology, the digital gap between those with access to such technology and others may be widened.

With EU-wide adoption of electronic means of communication, the use of the digital channel can be expected to have a positive environmental impact, due to the use of less paper and postage. While the production and operation of equipment will consume energy, the overall impact on the environment would be positive. In case videoconferencing or other means of distance communication technology are employed for oral hearings, that would lead to reduction of carbon emissions, because videoconferencing may produce only 7% of the carbon emissions caused by physical meetings 77 . Electronic communication has a smaller carbon footprint than equivalent standard mail (50 to 90% less per transaction) 78 . With lower rates of uptake of digital communication technology, there will be environmental impacts, but they would be closer to the status quo.

The impact to individuals, legal entities (including businesses), legal professionals, judges and Member States as stakeholders would depend on the uptake of digital communication technology with full adoption having an impact as described in Annex 1. However, considering the current trend of uptake, full adoption is not likely. These in addition to the analysis in Annex 1, would be the main impacts on the stakeholders.

Option 2 – Legislative option

Under the legislative option, a digital channel for cross-border communication would be established. Previous e-CODEX projects (e.g. eEDES, iSupport) have shown that this is technically and operationally feasible. The additional legal elements associated with this option (e.g. assurance that electronic documents and evidence sent through the channel would not be denied legal effect) ensure that the receiving Member State’s authorities would accept digital communications as procedurally relevant. This would improve access to justice and the enjoyment of fundamental rights. In addition, enabling parties to pay court fees using the same functionalities as would be available for communicating with the competent authorities would be less time‑consuming and more inclusive than the current situation, where they may need to visit a bank or a court in person.

As regards economic impact, the obligation to set up a digital channel would require new investment from the Member States to develop the necessary infrastructure to interact with e‑CODEX. The scale of the investment would depend on their current degree of digitalisation, their level of involvement in the e-CODEX project, the interoperability of current solutions and the scope for electronic transmissions under national law. However, in the long run, the digitalisation of justice would significantly reduce the costs incurred by national justice systems in cross-border procedures 79 . Furthermore, it would positively influence the process of digitalisation at national level. 

Assuming that the IT systems for exchanges of EIOs and the service of documents/taking of evidence, as developed by the Commission, will be extended to cover communication in cross-border judicial procedures, the total one-off cost for extending the eEDES and service of documents/taking of evidence systems would be EUR 18.7 million over 5 years. This cost will be covered by the EU budget through the Digital Europe Program and the Justice Program.

The costs for the Member States will be rather limited: EUR 8 100 000 per year i.e. EUR 300 000 per year per Member State. In the first 2 years, the cost of installation will EUR 100 000 per year per MS. This amount include hardware and the manpower to configure it. The remaining EUR 200 000 are necessary for support to the increasing number of users. As of the third year, there are no hardware and installation costs, but only cost for user support and maintenance of the system. This is estimated at EUR 300 000. Since the solution is web-based, there are no additional costs for courts and competent authorities since there is only one instance of the software to be installed at national level.

The cost per digital transaction 80 is EUR 2.95. The average overall yearly saving at EU level is EUR 23 372 900 in postage costs and EUR 2 216 160 in paper costs amounting to a grand total of EUR 25 589 060. The individuals and legal entities will be saving EUR 4 098 600 in postage costs and EUR 388 800 in paper costs.

The Member States will be gaining EUR19 274 300 per year in postage cost and EU 1 827 960 in postage costs. The overall saving of EUR 21 002 260 are offsetting the EUR 8 100 000 costs for installation, maintenance and user support that the MS will have to cover for running the IT system at national level.

The average posting time will be reduced to 0 resulting in an overall yearly reduction of the duration of the procedures by 15 389 999 days. The the individuals and legal entities will be gaining 2 700 000 days in average posting time.

874 person-years will be gained in processing effort at court/competent authority level.

181 448 100 A4 standard 80g printing paper pages will be saved out of which 31 833 000 by individuals and legal entities.

The other three measures refer to removing legal barriers. For instance making the oral hearings by videoconference legally possible does not entail any obligation of the courts to provide the technical means for it. Therefore, even though not travelling for a hearing would have positive environmental impact, cost savings for the parties and positive impact on fundamental rights due to the increased accessibility of the procedure and shortening of the delays, video-conference will remain subject to the availability of the equipment, the discretion of the court and the consent of all parties to the procedure. This is why the costs of equipment or travel savings were not taken into account in the cost/benefit analysis.

With its potential to cut substantially the cost of participating in cross-border cases, the initiative would also directly benefit individuals and legal entities (including SMEs) covered by the various EU civil law instruments. Individuals’, legal entities’ and legal practitioners’ use of these instruments (e.g. European small claims procedure and EPO) is also likely to increase thanks to the new electronic access point on the e‑Justice portal.

While this option will probably have positive economic impacts for certain categories of business, it will probably reduce the revenue of others. More specifically, the introduction of electronic channels of communication might have negative economic impacts on providers of postal service, paper and office supplies, transport services, etc. The revenue of such businesses is expected to decrease marginally due to the use of a digital channel, videoconferencing and other means of distance communication. A comparison of prices charged by transport service providers in three Member States for long‑distance bus, train and air journeys shows that cross-border travel is around 17% more expensive than domestic travel 81 . With the availability of an electronic channel, parties will probably travel to hearings only within their own country or not at all. This will probably result in a loss of revenue for transport service providers.

Conversely, increased revenue is expected for providers of IT consulting services, internet and telecommunications services, cloud storage services and archiving services, and manufacturers of videoconferencing and other remote communication equipment 82 . Courts would probably have to spend around EUR 36 000 a year on videoconferencing 83 . Since there are about 6 000 courts in the EU 84 (of which a limited number already have videoconferencing facilities), videoconferencing equipment manufacturers and service providers could gain as much as EUR 216 million across all Member States, if all courts were to be equipped with at least one videoconferencing facility.

The social impacts are two-fold: a positive impact of introducing the digital communication channel would improve public confidence in justice systems, access to justice and the efficient functioning of the competent authorities and the justice system as a whole. A negative social impact is the potential widening of the digital divide. Therefore, the initiative would need to ensure equality between individuals who prefer to use the paper channel and those who opt for digital means. The initiative would safeguard the needs and interests of individuals who are not digitally skilled by maintaining the current communication channels.

More efficient judicial cooperation and facilitated access to justice have the potential to increase the number of cross-border cases, which in turn will lead to higher workload for the courts. Such possible risk cannot be supported by the existing data and may only be presumed. Nevertheless, it should be noted that the initiative, and in particular the possibility for the parties to communicate with the competent authorities electronically and the mandatory use of the digital communication channel between the authorities, has the overwhelming support of the Member States. It could be concluded that Member States do not perceive the possible increase of the number of the cases as an obstacle to the digitalisation of cross-border procedures and attribute more value to the protection of fundamental rights, shortening the procedures, alleviating administrative burden (with minimum 874 person/years) and facilitating the processing of the cases. Therefore, the Impact assessment does not evaluate the possible risk of increased number of cross-border cases as a negative impact.

Other impacts under option 2, such as environmental and fundamental rights impacts, are suboption-specific.

Impacts of suboptions 2.1.a and 2.1.b (voluntary vs mandatory use of digital channel)

Concerning the use of electronic means of communication in cross-border cases between the competent authorities, the two suboptions proposed are to make such communication voluntary or mandatory. In case the legislative option would not impose the obligation to communicate electronically, the use of the digital channel would be left to the discretion of the Member States, and the frequency with which it would be used in cross-border cases could not be guaranteed. On the other hand, provisions which would impose the use of the digital channel as mandatory would come at no extra cost (as the channel would be established), but would ensure that the most efficient communication tools available are used in cross-border judicial proceedings. This would alleviate the competent authorities’ administrative burden and shorten judicial proceedings. Since the communication channel will make it possible to identify the competent court or authority for each instrument, the risk of addressing the wrong recipient, and thus the risk of ‘non‑competence’ refusals, would be reduced.

Regarding the impact on fundamental rights, shortening proceedings would bring tangible benefits for individuals, legal entities (including SMEs) and legal practitioners, as timely proceedings are an essential element of the right to a fair trial 85 . This was confirmed by the study supporting this impact assessment, with 57% of questionnaire respondents stating that regulating digital communication would have a ‘very positive’ effect on reducing administrative burden and an additional 21% stating that the impact would be ‘rather positive’. Similarly, 45% and 38% of respondents respectively were of the opinion that such an initiative would impact the duration of judicial proceedings ‘very’ or ‘rather’ positively.

The use of the digital channel can be expected to have a positive environmental impact, due to the use of less paper and postage. These environmental impacts relate mainly to the adoption of electronic means of communication and a likely increase in the use of videoconferencing and distance communication instead of in‑person hearings. While the production and operation of equipment will consume energy, the overall impact on the environment would be positive. Videoconferencing and other means of distance communication may produce only 7% of the carbon emissions caused by physical meetings 86 . Electronic communication has a smaller carbon footprint than equivalent standard mail (50‑90% less per transaction).

Impacts of suboptions 2.2.a and 2.2.b (voluntary vs mandatory acceptance of electronic communication)

Obliging Member States to accept electronic communication from individuals and legal entities would have a positive impact on access to justice, by providing additional, faster, more secure and more reliable means of communicating with courts and thus shorter judicial proceedings.

Allowing individuals and legal entities to make online applications would not only eliminate potential travel costs and difficulties in accessing infrastructure (courts, post offices, etc.), but would make legal redress more accessible to all, including victims of crime, people in remote and rural areas, and vulnerable individuals.

Obliging Member States to accept electronic communication would have a positive impact on SMEs and companies that already operate in a digital environment, by allowing them to use similar digital tools when they communicate with courts/competent authorities as those they already use day to day. If the acceptance of electronic communication remains voluntary, the positive impact and legal certainty will be reduced, as there is no guarantee that Member States will allow such communication.

To ensure parties’ autonomy and the rights of those without access to modern infrastructure, individuals and legal entities would be free to opt for paper‑based communication. This would also mitigate the risks of digital divide and exclusion, which raise concerns among the stakeholders.

The concerns raised by stakeholders with regards to the right to a fair trial and effective legal remedy, the equal opportunity for both parties to make their case, the right to have knowledge of and to comment on all evidence and observations in adversarial proceedings and the right to a public hearing in criminal proceedings, not interfering with the rights of the defence, including access to a lawyer and the case file, are general concerns rather than ones entirely specific to this initiative. The legislative option would on one hand ensure easier access to justice and judicial cooperation, thereby positively impacting the above concerns, while on the other hand maintaining traditional communication channels. However, it should be considered that the aim of the initiative is not to interfere with courts discretion in safeguarding the procedural rights of the parties.

Implementing videoconferencing tools or other distance communication technology would have a similar impact, as it may eliminate the need to travel in some cases and make courts more accessible. This is expected to have positive environmental impacts, in view of the reduced traveling. At the same time, it would be beneficial for the effective protection of fundamental rights. In the context of force majeure events, such as the COVID-19 pandemic, the videoconferencing tools could enable parties to participate in hearings, thus ensuring the right to a fair trial. To avoid negative impacts on the right to a fair trial, safeguards would have to be provided for vulnerable individuals in case videoconference is used.

For example, where children are involved in criminal proceedings, they may have difficulties in understanding and following a procedural act. Therefore, the holder of parental responsibility or another adult (as appropriate) should be informed as soon as possible about the use of videoconferencing or other digital communication technology. Specific technical assistance should be ensured during the hearing for older people who are insufficiently familiar with modern communication technology. Also, people with mental disorders or intellectual incapacities may require special assistance in a digital environment.

Remote hearings in EAW cases would, for example, enhance trust in the system of the executing state and support the operation of the European supervision order, as videoconferencing would allow the presence (next to the suspect or the accused and their defence lawyer) of the judicial authorities of both the issuing and the executing state. Information on the requested person’s personal circumstances (e.g. family, home, work) could easily be shared with the issuing authority. The same goes for information on possible alternatives to pre-trial detention in the executing state, e.g. allowing the person to continue working or caring for family while awaiting trial in the issuing state. Thus, unnecessary surrender under the EAW would also be avoided.

The use of videoconferencing or other remote communication technology would also eliminate the risk of further victimisation of victims of crime. For instance, the use of digital tools could reduce their contacts with the offender and limit unnecessary interaction with competent authorities. However, it must be ensured that each victim’s rights are fully respected in accordance with their individual needs.

Impacts of suboptions 2.3.a and 2.3.b ((non-)regulation of trust services)

If the acceptance and recognition of electronic signatures and seals are not regulated, the development of trust service standards will remain within the remit of the Member States, who will therefore decide whether signed communication originating from other Member States is to be accepted.

This would result in a negative impact on fundamental rights. Any uncertainty as regards the acceptance of communication and the required type of electronic signatures and seals would detract from the legal certainty and thus individuals’ and legal entities’ willingness to assert their rights via digital means of communication and they may feel obliged to incur travel or other associated costs.

On the other hand, regulating the acceptance of electronic communication would result in greater legal certainty and a more secure business environment.

No specific environmental impacts were identified for this particular sub-option.

In addition, suboption 2.3.b would lead to synergy with the digital identity framework, which would support identification of the parties for the purposes of making submissions or participating in remote hearings.

7.How do the options compare?

In this section, we compare the policy options and suboptions on the basis of the following four criteria:

·coherence with the existing legal framework at national and EU levels; and

·effectiveness, in terms of the potential to achieve the general and specific objectives of the initiative;

·efficiency, in terms of the probability of achieving cost reductions in cross-border judicial cooperation and access to justice in cross-border cases;

·EU added value, as compared with what could be achieved by Member States acting alone, and whether the objectives can be met more (cost‑) efficiently at EU level.

The results of the analysis are summarised in the table below and explained in further detail in this section. The table should be read as follows: ‘0’ if no new impact compared to the status a quo is expected; ”-” if negative impacts are likely to arise; ”- -” if the option will result in very negative impacts; ”+” pointing to positive impacts; ”++” referring to very positive impacts; and ”+++” to the best performance among the options.

Table 1 - Policy option comparison table

Under both the baseline scenario and the non-legislative option, Member States would use the digital channel for cross-border judicial cooperation in civil, commercial and criminal cases on a voluntary basis only. The non-legislative option could be more effective and efficient, mainly as a result of a Commission recommendation leading the Member States to digitalise their justice-related services more quickly and with a higher degree of technical and legal interoperability. While a recommendation could set out a harmonised approach to the adoption of e-CODEX-based tools (and common standards on trust services and the acceptance and recognition of electronic documents), its non‑binding nature would mean that the Member States may not uniformly follow its principles. This is especially true for Member States that have already implemented national solutions as regards the digitalisation of judicial cooperation, as well as for those in which such solutions are not yet in place. Consequently, fragmentation (and thus inefficiencies) could be expected, as EU‑wide coordination on the choice of instruments to be digitalised and IT tools and standards to be used would be difficult.

As concerns coherence, in the light of the above, the baseline scenario and the non‑legislative approach could have negative impacts overall. This because the use of digital tools for cross‑border judicial cooperation and access to justice in cross-border cases would result in some Member States joining voluntary initiatives (e.g. e-CODEX and eEDES) and others not being involved at all. This would probably reinforce or extend the current tendency to rely on the paper channel, which results in financial costs and negative environmental impacts. Also, the use of unsecure electronic communication would probably continue, which might raise privacy and data protection concerns.

The legislative option would provide a digital communication channel for cross-border judicial cooperation and access to justice, and arrangements for the acceptance and recognition of electronic documents, and the online payment of fees. As a result, all Member States would have at their disposal the same tool, which would ensure secure, reliable and efficient communication. The tool would be adapted to the needs of the judiciary, as it would be based on e-CODEX, which has been developed specifically for the justice sector. In terms of coherence, the legislative option would have a positive impact, as an initiative on the digitalisation of justice would seek to provide a common framework for the digitalisation of the Union instruments in the civil and criminal area, and ensuring that they are treated under a common regime throughout the Member States would require legislative action so as to guarantee harmonisation.

In terms of effectiveness, the legislative option compares favourably to the baseline scenario and the non-legislative option. The data presented in section 2 allows us to make a limited projection of the expected results. However, the data still indicates that due to maintaining the status quo by the baseline option, and the voluntary element attached to the non-legislative option, the legislative option is the only one which ensures the achievement of the initiative’s objectives. However, whether the objectives could be fully achieved depends on the suboptions under the legislative option:

·how much would Member States’ authorities use the digital communication channel?

·would Member States accept electronic communication from procedural parties (including hearings conducted via videoconferencing)?

·would the same standards be applied to trust services?

Requiring Member States to use the digital channel in all instances of judicial cooperation covered by the relevant EU legal framework is the only way of guaranteeing its use. A voluntary approach would give rise to an economic impact in terms of resource allocation to develop the channel, but no significant additional assurance as to its use (as compared with the baseline scenario and the non-legislative option).

While one Member State’s voluntary use of the digital channel could improve the functioning of the internal market, the enjoyment of fundamental rights and the capacity of the judiciary to process a volume of cases which is assumed to increase proportionally with the number of citizens and businesses finding themselves in a cross-border situation, there will always remain the possibility of another Member State’s authority choosing to reply using paper‑based communication, thus limiting the benefits of digitalisation.

The establishment of EU access point which allows the use translated and harmonised forms, will be the easiest way for citizens and businesses to access justice related services. We assume that easier access to such services will result in an increased number of cross-border cases, due to the fact that barriers to initiating a cross-border cases (such as the need to appoint a lawyer at the forum Member State, the ned for translation, the use of postal services) will be removed. Requiring Member States’ authorities to accept electronic communication from individuals and legal entities, regardless of whether it is made through the EU access point or a national platform, will ensure the use of the digital route in this context and the elimination of the above mentioned barriers. In the absence of such a requirement, there would be no legal certainty regarding the use of the digital channel and individuals/legal entities may therefore be reluctant to use this route. As access to justice depends partly on individuals’ and legal entities’ ease of access to judicial authorities, limiting the scope for quick and efficient communication would have a negative social impact and may impair the protection of fundamental rights, particularly in the case of vulnerable groups.

The same holds for the use of videoconference tools for oral hearings. By failing to provide a legal basis for this, the baseline scenario would leave the parties without the option of requesting the use of videoconferencing and the courts without a legal basis to set up remote hearings. The parties would therefore have fewer possibilities to participate in procedural action before the courts. This could negatively impact their procedural and fundamental rights and lead them to incur travel costs. In contrast, a legislative proposal providing for a legal basis for videoconferencing would ensure the existence of EU‑level rules in this area, eliminating conflicts between possibly disparate national provisions and helping to overcome the consequences of the lack of such rules. Only binding legislation would ensure that parties in all Member States can participate in oral hearings via videoconference; this would not be the case with a Commission recommendation.

As regards the regulation of trust services (legislative option with regulation of common standards of trust services) or their non-regulation (common to the baseline scenario, the non-legislative option and the legislative option with no regulation of common standards), only the adoption of common standards would guarantee the acceptance and recognition of electronic seals and signatures from other Member States. Trust services are an essential component of a well-functioning digital communication infrastructure, because, even where all Member States agree to accept a form of digital communication, authorities may still refuse it if the standards for the identification of the sender are not compatible or if the trust service assurance level is deemed inadequate. The same applies to the identification of parties in the context of videoconferencing.

A Commission recommendation would encourage Member States to adopt standards on the use of the trust services under the e-IDAS regulation. However, the adoption of national measures may lead to a non-harmonised approach and disparities, putting a question mark over the acceptance of electronic communications.

Under option 2 and suboption 2.3.b, the legal instrument would introduce provisions on the use of e-signatures and e-seals as regulated under the e-IDAS Regulation. The introduction of such provisions and common standards for the recognition of e-signatures and e-seals would strengthen legal certainty for individuals, companies and public administrations.

In this context, a common set of standards is necessary to ensure seamless judicial cooperation and access to justice.

In terms of efficiency, the non-legislative option would generate moderate costs. These will be offset by a range of indirect positive economic impacts as outlined in section 6. However, the legislative option can be expected to have significant positive economic effects on certain categories of business, whereas it will affect the revenue of other businesses. Overall, a range of benefits would likely arise: time savings, decreased legal fees, decreased travel costs, decreased labour costs etc. No impact other than the maintaining of the status quo can be expected under the baseline scenario.

In terms of the EU added value of the legislative option, it would be higher than it can be expected from the baseline scenario of the non-legislative option, given that by means of an EU instrument (allowing or requiring the use of the digital channel), a harmonized regime would be created in the Member States. This would likely tackle the current legal fragmentation and gaps across the concerned EU instruments and, thus, enhance access to justice and the resilience and the efficiency of justice in cross-border cases.

8.Preferred option

In the light of the above comparison, the preferred option is the legislative option (option 2), with suboptions 2.1.b, 2.2.b and 2.3.b; i.e. in summary:

ürequiring the use of the established digital channel for communication in cross‑border judicial cooperation;

ürequiring Member States’ courts and competent authorities to accept electronic communication from individuals and legal entities via the access point on the e‑Justice portal or via national portals. Individuals and legal entities would remain free to choose between electronic and paper-based communication;

üproviding a legal basis for parties and their representatives to participate in oral hearings via videoconference or other distance communication technology tools;

ülaying down provisions on e-signatures and e-seals through an explicit reference to the e-IDAS Regulation;

üregulating the online payment of court fees; and

üestablishing the responsibilities of different data controllers and processors.

In cumulative terms the effects of the preferred option are expected to yield the following benefits: i) more accessible tools for initiation of cases and undertaking of procedural; actions for citizens and businesses and ii) improved capacity of competent authorities to process the increased volume of cross-border cases 87 .

Proportionality assessment of the preferred option

Despite imposing more obligations on Member States, the preferred option would not require the adoption of measures that would burden them beyond what is necessary for the achievement of this initiative’s objectives. Member States would only have to implement measures that ensure the functioning and harmonised use of the digital communication channel. The analysis of policy options has shown that non‑legislative measures cannot ensure that the objectives will be achieved.

As regards the suboptions under the legislative option, non-mandatory measures would not result in a broad, harmonised approach to digital communication and would thus not fully achieve the goals of this initiative. While the suboptions allowing for a voluntary approach to digital communication, videoconferencing and the regulation of trust services would be proportionate to their realistically achievable goals, this would encompass only some of the goals. The objectives can be fully achieved only through legislative provisions requiring the use of digital communication, allowing videoconferencing and regulating trust services. The legislative option and the suboptions imposing obligations on the above would thus be entirely proportionate to the objectives of the initiative.

9.How will actual impacts be monitored and evaluated?

A sound system for monitoring the proposed legal instrument is needed, including a comprehensive set of qualitative and quantitative indicators, and a clear, structured reporting process. This is important for tracking whether the instrument is implemented efficiently in the Member States and whether it is successful in achieving its specific objectives.

In order to provide guidance in the monitoring process, Table 2 presents indicators that help analyse the extent to which the objectives are achieved. A full evaluation every 5 years would be useful for assessing impacts and contextual issues. Where electronic communication is used, monitoring will be facilitated by automatically compiling data and using the reporting features of the new IT system. For data that is not collected automatically, a monitoring sample of at least one court or competent authority to be designated by each Member State will be put in place.

EJN-civil and EJN-criminal will play an important role in the implementation and application of the proposed instrument. These forums (which bring together national stakeholders and the central authorities and agencies dealing with the implementation of the relevant regulations) can be used to obtain feedback from Member States on the application of the instrument and identify practical problems.

Table 2: evaluation and monitoring framework

Annex 1: Procedural information

Lead DG: Directorate General Justice and Consumers

Decide Planning: PLAN/2020/8681 - Digitalisation of cross-border judicial cooperation.

The Initiative is part of CWP 2021- Digital judicial cooperation package, point 41 and is referenced under the Policy objective “A New Push for European Democracy”. The adoption is planned for Q4 (December 2021).

Organisation and timing

An Interservice Group (ISG) was set up on 4 December 2020.

The Inception Impact Assessment was validated by the Vice President Jourová’s Cabinet, the Cabinet of Commissioner Reynders and SG in January 2021 and published on 8 January 2021.

The ISG met two times and a written consultation was conducted before the submission of the Impact Assessment to the Regulatory Scrutiny Board on 25 August. The ISG made written comments to the Impact Assessment. These comments are summarised in a document submitted together with the present Impact Assessment. All comments have been addressed in a revised version of the Impact assessment, which was submitted to RSB.

Consultation of the RSB

An upstream meeting with the RSB took place on 22 February 2021, whose recommendations were duly taken into account.

This draft Impact assessment was submitted to RSB on 25 August 2021 towards the 22 September RSB hearing.

The RSB delivered a positive opinion on 27 September 2021. The following recommendationshave been made:

(1) The problem analysis should be reinforced to highlight the main problems this initiative aims to address. The analysis should be substantiated with evidence regarding voluntary participation in digitalisation, non-recognition of electronic documents, signatures or seals and interoperability.

(2) The report should explain how this initiative will ensure coherence with other EU-level instruments designed to enhance digitalisation that could be used in cross-border judicial cooperation. The report should also explain why Member States do not fully exploit the existing possibilities for digitalisation.

(3) The impact analysis should be strengthened with a transparent presentation of impacts, particularly investment costs and stakeholders affected. It should acknowledge the uncertainties in the assumptions made and the implications these have for the impacts assessed.

(4) The report should assess effects of a potential increase of cross-border cases. It should discuss whether there is a risk that improved access to justice and more efficient cross-border judicial cooperation could lead to delays in the treatment of cases due to higher workload for judges and the time legal proceedings take.

(5) The report should clarify the data protection issues and acknowledge that moving from a paper to a digital format entails other risks. The report should address potential sensitivities linked to the fact that having more data in digital format may not only ease their transmission, but also creates data protection and security issues. The concerns raised by stakeholders about data protection should be considered.

Additional recommendations have been sent with the quality check list.

In addressing the RSB recommendations, the following changes were introduced in the Impact assessment:

(1)The problem definition has been reformulated, so that it also reflected the actual problems analysed in Section 2.

(2)The coherence with other initiatives, such as e-CODEX and e-IDAS have been explained, as well as the interlinks with the e-Justice portal.

(3)The section on the impacts of the baseline and the policy options has been restructured and the main impacts (i.e. economic impacts, social impacts, impacts on fundamental rights) have been outlined for each of the options. The section also addresses in what way the main stakeholders will be affected by the initiative.

(4)The section on the impacts clarified whether there is a potential risk of increased number of cross-border cases and the capacity of the judiciary to deal with it.

(5)Clarification with regards to data protection has been added in the section on the impacts.

In addition, the report was supplemented with the data available from the supporting study and from Annex 7. The economic analysis and the costs for the Member States have been added to the report. The views of the consulted stakeholders have been outlined in the corresponding sections of the report. The technical recommendations, such as merging the outcome of the public consultation with Annex 2, numbering the pages of the Annexes, deleting the Annex on the subsidiarity grid, have been addressed.

Evidence, sources and quality

For more than a decade the Commission has been working in the framework of the e-Justice policy with different stakeholders. These stakeholders have been consulted on the objectives of the initiative and on the identified policy choices. Following the consultation strategy prepared for this initiative, a broad variety of different stakeholders have been contacted – consultations have been carried out within the e-Justice, Civil and Criminal Council Working Parties, EJN-civil, EJN-criminal. The following actions were envisaged as a minimum under the consultation strategy:

·Feedback on the Roadmap.

·Public consultation on the Commission’s consultations website ‘Have your say’.

Both the feedback on the Roadmap and the results of the public consultation are presented in Annex 2.

In addition, the Commission used the considerable amount of already collected factual data concerning digitalisation of justice in the EU, for instance from: the Justice Scoreboard, Rule of Law report, CEPEJ data (European Commission for the Efficiency of Justice, an initiative of the Council of Europe), a questionnaire sent to Member States by the Council General Secretariat and the Digital Criminal Justice study.

A study to support the preparation of the Impact assessment has been commissioned. The contractor employed the following stakeholder consultation activities specifically designed for the purposes of the study:

·EU level focus group;

·National stakeholder consultation on impacts of policy options

·National-level survey

·Focus groups at national level

·Bilateral interviews

·Validation of the policy choice

All data collected fed into the different steps in the preparation of the initiative, including in the Impact Assessment.

The Impact Assessment was based on certain assumptions, namely:

·It was estimated that the number of cross-border cases in civil, commercial and criminal matters would be growing with the increase of the number of people living and working in a Member State different from the one of their origin and with the increase of the number of people traveling for tourism purposes.

·It was estimated that the number of persons visiting and using the European e-Justice Portal will result in increased number of cross-border cases.

Other assumptions were used to help with the quantification of the current status quo and impacts of each policy option. The need for these assumptions was dictated by data heterogeneity that the Impact Assessment encountered.

The data limitations encountered in this Impact Assessment were the following:

·fragmented data on the number of cross-border cases in civil, commercial and criminal matters;

·fragmented data on the length and costs of the cross-border proceedings in civil, commercial and criminal matters. In particular, Member States do not keep records on the number of the cross border cases brought before their courts or the length of the cross-border proceedings. Therefore, the data regarding the number of cases, and average length and costs of the cross-border proceedings in civil, commercial and criminal matters had to be estimated or extrapolated based on the limited amount of data collected.

To mitigate the impact of the data limitations (to the extent possible), the external contractor followed up directly with some of the stakeholders to clarify certain aspects such as the length and the costs of the proceedings, sought to model certain use cases of cross-border judicial cooperation (e.g. EIO, EAW, EPO) and when feasible, attempted to corroborate the existing evidence through interviews with various stakeholder groups in different Member States. In addition, where quantification of costs and benefits was not feasible, a qualitative approach was chosen instead (description of processes and types of costs and benefits deriving from the options).

Annex 2: Stakeholder consultation

The consultation activities carried out in the preparation of the Impact assessment aimed at ensuring that all interested parties and stakeholders will have the opportunity to provide feedback on the various policy options that the Commission has identified with regard to its initiative, and their likely impacts, as well as on the relevance, effectiveness, efficiency and the added value of the initiative. In that context, the Commission reached out to a broad range of stakeholders, including Member State national authorities, non-governmental organisations, professional associations, business organisations and individual citizens.

·On 8 January 2021, the Commission published the Inception Impact assessment (Roadmap), which was opened for a feedback until 5 February 2021 with a total of 19 replies.

·In order to collect views from the general public, on 16 February 2021 the European Commission launched an internet-based public consultation on the Commission’s consultations website ‘Have your say’ in 22 of the official EU languages. The consultation was questionnaire-based. The consultation period was twelve weeks and run until 11 May 2021. A total number of 89 replies have been received.

2.1. Summary of the feedback on the Roadmap

National Court administration, Finland:

The feedback suggests that a distinction should be made between transferring papers electronically and genuine digitalisation. The expressed preference is for a horizontal approach because a tailor-made solution to each EU instrument would not lead to a user-friendly outcome. Long-term and all-encompassing planning would ensure interoperability of the different systems and appropriate prioritisation of projects, and would allow for long-term financial planning. Digitalisation of justice is not simply a question of finding the technical solution. It is also a process that must involve the judiciary to ensure that their independence is not compromised.

Digitalisation should go hand-in-hand with training and building relevant skills.

Ministry of Justice of Poland:

The level of development of each Member State should be taken into account and digitalisation should be promoted for national proceedings as well. Otherwise, the digitalisation of cross-border cooperation will have limited effect if the operation of national justice is not digitalised first. Poland supports mandatory electronic communication between authorities subject to certain exceptions.

While there is a lack of EU competence to regulate technical standards and norms in the administration of justice, the use of a common IT system creates a new quality and is useful for the citizens.

Concerning the legal effects of electronic documents and the recognition of electronic signatures, Poland submits that the e-IDAS Regulation is sufficient and there should not be a further regulation and rather more training and exchange of good practices between courts in the field of assessing the reliability of evidence presented to the court and recognition of electronic signatures.

Ministry of justice Estonia:

Estonia fully supports the Commission’s intention of making the digital channel the default option in EU cross-border judicial cooperation. The exchange and operability of data must replace the exchange of documents.  

It is essential that digitalisation of cross-border judicial cooperation is implemented in full compliance with fundamental rights, such as the right to the protection of personal data, the right to a fair trial and the right to an effective remedy. The right to access justice should be fully respected also for disadvantaged groups and vulnerable people.

For the Justice sector to become more digitalised, decentralised digital solutions for the Union (e-CODEX) and the overall level of digitalisation of judicial systems in the Member States should be developed simultaneously. However, Union-level solutions should not force digitally more developed Member States to regress.

Estonia supports the development by the Commission of reference implementation software solutions for Member States’ use by re-using the infrastructure being developed for the European Investigation Order in criminal proceedings (eEDES) and for the Service of Documents and Taking of Evidence.

National Council of the commercial court clerks, France:

The National Council welcomes the initiative and will work alongside the European Commission to achieve its goal.

A pioneer in digitalisation for several years, the National Council of the commercial court clerks has developed (with the assistance of GIE Infogreffe, of which each clerk is a member) digital tools allowing on the one hand the dissemination of company data and, on the other hand, facilitating business procedures and formalities as well as access to commercial justice. These additional and faster digital resources have made it possible for commercial justice to operate, particularly during the period of the health crisis, and for companies to continue their procedures online.

Ministry of Justice, Sweden:

Sweden recognises the importance of effective access to justice, especially in times of crisis.

The challenges to be addressed are outlined as follows: everyone should be able to take part in the digital society in a safe and reliable way - not to exclude those who cannot, or don’t want to use digital tools; additional challenges are relating to information security, personal integrity, regulations, technology, and guarantees for finances.

The Ministry submits that the introduction of a mandatory digital system should be discussed in relation to each legal act, and in ensuring proper funding.

iSupport Governing Body (HCCH):

The iSupport governing body welcomes the initiative.

They insist on ensuring the coordination between the EU Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations) side and the Convention (Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance) side of iSupport, as a divergence could be created by different technical requirements between the Convention and the Regulation.

Notes that iSupport is an example that could be relied upon for further development of applications to support cross-border communications in other areas than maintenance obligations.

Fair Trials, Belgium:

Fair Trials welcome the search for ways to make criminal justice systems more accessible through digitalisation. Digitalisation presents an opportunity not only to promote cooperation between law-enforcement agencies, but also to better implement existing EU standards on defense rights in cross-border proceedings, which remains problematic in practice, as reported by the EU Fundamental Rights Agency and the European Commission (e.g. on the right to access a lawyer).

They note the need to ensure that the fundamental rights enshrined in the six EU Procedural Rights Directives and the EU Charter of Fundamental Rights are protected in a digital setting.

They suggest the following approach:

Promote the use of alternative measures to the European Arrest Warrant (EAW)

•    The Council has previously called for measures to address the overuse of pre-trial detention and to promote its alternatives. Reducing over-reliance of European Arrest Warrant is key in these efforts. Therefore, digital solutions (e.g. interviewing a suspect through videoconference) should be used to promote the use of the European Investigation Order instead of European Arrest Warrants for prosecution.

•    Digitalisation can promote more effective access to justice, including the possibility to file submissions digitally in both the executing and issuing Member States. This would also enable defense lawyers to challenge unnecessary detention and apply for less restrictive cross-border cooperation instruments.

Access to dual legal representation

•    Article 10(5) of Directive 2013/48/EU requires Member States to cooperate to facilitate appointment of a lawyer in the issuing state. In European Arrest Warrant proceedings, digitalisation should seek to address a long-standing implementation gap in dual legal representation. Digital tools should be used to enable access to information on the appointment of a lawyer in the issuing State and legal aid schemes.

•    Digital tools should also enable a cooperation between lawyers in the issuing and executing states to prepare an effective defense and seek an effective remedy where necessary.

Access to information

•    To promote equality of arms in cross-border proceedings and the effective implementation of Directive 2012/13/EU on the Right to Information, the defense must also be able to access digitalised case information and materials in cross-border proceedings.

•    In European Arrest Warrant proceedings, the defense must have access not only to the arrest warrant form but also to all documents necessary to understand its grounds in a timely manner. This could help prevent unnecessary arrest, detention and surrender of persons to other countries.

•    The Letter of Rights in European Arrest Warrant proceedings (Article 5 of Directive 2012/13) should be made available in a digital format in different languages to ensure that every person receives information about their rights in a language they understand.

•    Digitalisation also offers the possibility to enable persons to make online submissions using multilingual forms and to get the necessary information and assistance online in their own language, for instance on legal aid. This would promote access to justice also for all persons, including vulnerable persons.

Access to interpretation and translation

•    In the EU Area of Freedom, Security and Justice, which enables the free movement of persons across countries, digital tools must help secure access to translation and interpretation enshrined in Directive 2010/64/EU, to enable people to understand and participate effectively in cross-border proceedings.

Council of the Notariats of the European Union:

The Council of the Notariats agrees with the findings of the Inception Impact Assessment to the extent that digitalisation is key and that some issues still have to be tackled in order to ensure that cross-border exchanges can be carried out safely and securely by digital means.

They cautiously welcome the creation of multilingual online forms to enable remote procedures to be carried out and call for feasibility studies to be carried out, for legal professionals to be consulted beforehand,, for the advisory dimension to be preserved and for citizens to be able to have all the necessary safeguards so that procedures cannot be initiated against the will of the parties.

They are convinced that digitalisation can contribute to offer a better service to the citizen, for example in the field of company law.

The Council of Notariats believes that the creation of a new section on the European e-Justice Portal dedicated to the digitalisation of cross-border judicial cooperation would facilitate the access to information for the EU citizens and law practitioners. Information such as the list of providers of the digital certification services for the qualified electronic signature and documents mandatory in the national legislation for each service provider in the field of certification (information concerning trust chain, timestamp) could facilitate the recognition of the electronic signature from the issuing Member State to the receiving Member State.

They welcome the fact that the Inception Impact Assessment confirms the approach of interoperability between national systems rather than building complex European systems; it is important that the Member States and the legal professions can continue to build the most useful tools for their specific needs.

Further development of videoconferencing solutions and secure and reliable identification procedures for both legal professionals and their clients are of utmost importance when it comes to the further promotion and the fostering of digitalisation tools in cross-border proceedings. The notaries, in the context of their task of verifying the identity of the person appearing before them, must be able to check the identity documents of all EU citizens.

The outlined challenges are the following: it has to be guaranteed, that legal certainty and the quality of preventive legality control within the justice system as well as the reliability of public registers will not be impaired by an enhanced digitalisation of cross-border cooperation; the control of the technical solution is crucial; data protection, confidentiality and high securities standards in the digital world must be guaranteed in the same way as in the “physical world”; not to exclude citizens who do not have internet access or cannot use technologies for various reasons and make sure that these people will also continue to benefit from an efficient access to justice; the Commission should take into account the percentage of the EU population living in remote or rural areas, where access to internet or new technologies may not be easily achieved and where the drafting of documents on paper is necessary.

German Federal Ministry of Justice and Consumer Protection:

The Ministry welcomes the initiative of the Commission to promote the digitalisation of cross-border judicial cooperation by means of a draft legislation. Both the analysis of the problem and the goals of the project are fundamentally shared.

With regard to legislative options, consideration should be given to creating a minimum standard for the participation of Member States in cross-border digital communication via e-CODEX, which would offer a degree of trustworthiness of digital documents that is sufficient for a large number of the existing instruments in their current version. It should be checked whether such a minimum standard, which could be based on the qualified electronic seal in accordance with the e-IDAS Regulation, cannot already be integrated into the proposal for e-CODEX Regulation. Insofar as individual instruments of judicial cooperation have higher requirements for the electronic form for certain documents, corresponding requirements could then be added to the legal acts concerned, again linked to quality levels of the e-IDAS Regulation. This approach would avoid having to reform a large number of legal acts, which experience shows would take a considerable amount of time. It should be avoided under all circumstances to define new, parallel standards in addition to the established and directly applicable standards of the e-IDAS Regulation. Member States whose institutions already use qualified e-IDAS-compliant procedures must be able to rely on the fact that they will also be able to participate in future legal transactions on this basis.

In addition, there would still be room to regulate general aspects of digitalised judicial cooperation in a new regulation, such as the general obligation to use the digital channel and the obligation to accept digital documents if they meet the requirements of the e-IDAS Regulation. This would also ensure the uniformity of the formats and formal requirements used. Exceptions with regard to the availability of the digital systems and the specific requirements of certain procedures would also have to be regulated. Last but not least, the rules for setting up of any IT systems that are still required could be set on the basis of already proven structures such as e-CODEX.

The outlined challenges are the following: common IT solutions for judicial cooperation at European level must be designed in such a way that they respect the independence of the judiciary and the principle of subsidiarity; the judiciary in the Member States should have a say in the initial and further development of IT systems that enable cross-border legal exchanges; appropriate transition periods before an application becomes mandatory.

The Ministry notes the need of developing reference implementation software that can be used across the EU. The use of national IT systems instead of the reference implementations must remain possible if these systems meet the objective standards for security, authenticity and interoperability.

European Disability Forum, Belgium:

The Forum welcomes the initiatives of the European Commission to improve access and efficiency of the justice system. Modernising judicial cooperation between EU countries to improve access to justice in cross-border cases, through the use of digital technology, can be very beneficial to persons with disabilities. Persons with disabilities currently face multiple barriers in the justice system (including digital barriers) that hinder their access to justice in cross-border cases. They are also affected by the digital gap. The recommendations made include recognising the accessibility as a core principle of the modernisation of the judicial cooperation between EU countries and ensuring accessibility is a requirement in all related EU initiatives.

Ministry of Justice of the Republic of Latvia:

Latvia agrees that the introduction of a common EU legal framework in the field of cross-border digitalisation of judicial cooperation would ensure faster and more efficient judicial cooperation between the Member States.

In cross-border matters, the electronic circulation of documents is currently rare in practice due to a lack of mutual trust between the countries. Electronic circulation is mainly ensured by converting paper documents into electronic format, scanning and sending them to the Member State concerned, but the Member States still require that the original documents are sent to them in paper form. This is a time consuming process and requires double labor resources. The introduction of a mutual mechanism for the recognition of electronic signatures between the Member States would speed up these processes. 

The proposal to establish legal channels for the circulation of electronic documents between MS is also to be supported, because it reduces the risks of information leakage and creates certainty in cross-border judicial cooperation. Given that the instruments of judicial cooperation in both civil and criminal law are evolving and new electronic data transmission channels are being created, the idea of ​​improving existing information transmission channels should be supported.

International Union of Notaries Professional Assistants:

Gathering all the necessary documents in digital form will be a great help, to send and receive digitally signed documents will save a lot of time and money. E-signature should be applied also in the copies of notarial acts with the same value in all countries.

The usual problem is the lack of training of citizens, people usually don't know how to use them or they are not informed. As the process goes, there should be online free seminars for everyone that is interested.

Studio Legale de Franciscis, Italy:

Studio Legale supports the establishment of a system for digital cooperation in cross-border cases. Modernisation and development in this sense must be encouraged, including the necessary protection of data. In case the system is not used – respective penalties to be provided for.

Brussels Human Rights and Development Organization:

Brussels Human Rights and Development Organization supports the initiative. The information must be protected and its safe transmission should be guaranteed. However, the paper exchanges should be kept.

Francois Gerin, a citizen from Belgium, a software engineer:

Mr Gerin submits that software which is coded will lead to challenges (as it happened with BE IDs), therefore the source should be open. Since this is an EU matter, and no foreign software maker (Google and Microsoft) should interfere or get monopoly on or profit from this project. Small software companies, which participate much more in the economy should be favored.

Anonymous citizen from France:

It seems weird that nowadays one cannot communicate electronically with authorities. The paper format however should be kept.

Giorgio Cannella, a citizen from Italy:

Sanctions should be applied if a private or public body of a Member State does not comply with the mandatory provisions of the Regulation.

2.2. Public consultation results

The public consultation sought the views and opinions of all stakeholders who could be impacted by the future initiative (citizens, ministries, courts, JHA agencies and EU bodies, legal practitioners) in order to take them into consideration when deciding on the possible options and the way forward.

A summary of some of the main findings could be found below. Detailed and visualised results of the Public consultation can be found in Annex 2.

Benefits and disadvantages of the digitalisation of EU cross-border judicial procedures

A large majority of respondents perceive benefits from the digitalisation of EU cross-border judicial procedures (≈98%), with only very few stakeholders (≈2%) indicating that they do not perceive benefits at all. More than 80% of the respondents agree with the statement that digitalisation will lead to speedier and more effective/efficient cross-border procedures (≈88%), will save time for both administrations and citizens or businesses (≈87%), that it will lead to better accessibility of information and easier access to judicial procedures (≈86%), and will lower costs of handling cases both for administrations and citizens/businesses (≈81%). A minority of stakeholders believe that it will increase the resilience of judicial systems (≈38%) or will lead to any other type of benefit.

With regards to the disadvantages, 62.5% of the stakeholders express cybersecurity concerns. Data protection is a concern for ≈49% of the respondents, and so is the risk of exclusion due to different factors, including lack of digital skills (≈42%), lack of access to the internet/unreliable internet connection (≈32%) or due to lack of adequate equipment (≈31%). For 12.5% of the stakeholders the digitalisation will not bring any disadvantages.

Concerning the rights to a fair trial and the right of defense, more than two thirds (≈66%) of the stakeholders do not see in the digitalisation of cross-border judicial cooperation a threat to the right to a fair trial and the right of defense. A fifth of the respondents (≈20%) perceive a threat to these rights.

Key barriers to the digitalisation of cross-border judicial cooperation

A majority of stakeholders identify six specific barriers to digitalisation of cross-border judicial cooperation. These are i) the different level of digitalisation of the Member States (≈84%), ii) the lack of financial and human resources for developing and maintaining IT systems (≈68%), iii) the lack of digital skills of users and/or competent authority staff (≈65%), iv) lack of interoperable national IT systems which can communicate with each other (≈62%), v) the lack of regulation recognising legal effects of considering electronic evidence admissible under national law (≈54%), and vi) the lack of recognition of electronic identities and electronic signatures/seals between Member States (50%).

The stakeholders were asked further questions on other challenges that should be considered during the transition to digitalisation of cross-border judicial cooperation. 57 respondents provided open-ended responses. The most frequently mentioned challenge (13 respondents) was the need to secure harmonised or mutually recognised channels for communication that are interoperable; 8 respondents indicated the heterogeneous degree of digitalisation across the EU in general or in particular in relation to the justice system; 7 respondents indicated the security of the channels, and the same number of respondents pointed out challenges to the security, privacy, and independence of the judiciary and judicial bodies. Other challenges identified are the digital transition as such (6), issues related to equal access to justice and guarantees to fundamental rights (6), the admissibility of electronic documents and language issues (both 4).

According to ≈51% of respondents the digitalisation of cross-border judicial cooperation could lead to exclusion of individuals and businesses, including SMEs, due to lack of internet access, low digital skills, vulnerability or other reasons.

Preferred scenario for digitalisation of EU cross-border judicial cooperation and access to justice

Regarding the digitalisation of the cooperation between the courts and other competent authorities of Member States, 80% of the respondents would prefer the digitalisation of this cooperation to be mandatory, for only ≈16% that would prefer it to be optional. Among the public authorities, support for a mandatory digitalisation of the judicial cooperation is expressed by ≈68% of the respondents, for ≈26% of them that would prefer the electronic exchange to be optional. Roughly 67% of the respondents prefer the electronic format as the most adequate for communication between judicial and other competent authorities across borders, while approximately 28% of the respondents prefer a combination of paper-based and electronic communication. Thus, 95% of the respondents identify the electronic format as the most appropriate channel for communication, either exclusively or in combination with the paper-based channel. The involvement of the JHA agencies and EU bodies in the digital channels of communication is thought to bring added value for a large majority of the respondents to the specific question (≈68%).

Regarding access to justice two thirds (≈66%) of the respondents support mandatory digitalisation of cross-border electronic communication of individuals and businesses with the courts and other authorities. The public consultation did not include a question on the use of the videoconferencing or other distance communication technology for the purposes of the oral hearings, because this option was identified after the public consultation was launched.

Two-thirds of the respondents indicated that they would directly benefit from an EU-developed IT solution provided to them in the context of a possible transition to a digital channel of communication for EU cross-border judicial cooperation procedures.

Results of the public consultation

Consultation on the Digitalisation of Cross-Border Judicial Cooperation in the EU

The main observations from the extraction of the 89 replies to the public consultation are the following: The most frequent (43) replies were from EU citizens, followed by public authorities (20). Their six main countries of origin were Spain (11), Germany (10,) Belgium (7) Italy, Portugal, and Romania (6).

Table 6 - Feedback by stakeholders

Table 7 - Feedback by country of origin/affiliation

The overview below focuses on the main questions that can be analysed from a purely quantitative approach.

Benefits of the digitalisation of EU cross-border judicial procedures

A large majority of respondents perceive benefits from the digitalisation of EU cross-border judicial procedures (≈98%), with only very few stakeholders (≈2%) indicating that the do not perceive benefits at all. More than 80% of the respondents agree with the statement that it will lead to speedier and more effective/efficient cross-border procedures (≈89%), cause less time to be consumed for both administrations and citizens or businesses (≈88%), that it will lead to better accessibility of information and easier access to judicial procedures (≈85%), and to lower costs of handling cases both for administrations and citizens/businesses (≈81%).

A minority of stakeholders believe that it will increase the resilience of judicial systems (≈37) or lead to any other type of benefit.

Figure 2: What would be, in your view, the benefits of the digitalisation of EU cross-border?

Key barriers to the digitalisation of cross-border judicial cooperation

A majority of stakeholders identify six specific barriers to digitalisation of cross-border judicial cooperation. The barriers perceived by the most stakeholders is the different level of digitalisation of the Member States (≈84%), followed by the lack of financial and human resources for developing and maintaining IT systems (≈67%), the lack of digital skills of users and/or competent authority staff (≈65%), lack of interoperable national IT systems which can communicate with each other (≈61%), the lack of regulation recognising legal effects of considering electronic evidence admissible under national law (≈56%), and the lack of recognition of electronic identities and electronic signatures/seals between Member States (50%).

Figure 3: What do you consider as key barriers to the digitalisation of cross-border judicial cooperation?

Disadvantages of the digitalisation of EU cross-border judicial procedures

Despite some concerns derived from the digitalisation of EU cross-border judicial procedures, 12.5% of the stakeholders do not see disadvantages of it.

Instead, 62.5% of the stakeholders express cybersecurity concerns. Data protection is a concern for ≈49% of the respondents, and so is the risk of exclusion due to different factors, including lack of digital skills (≈42%), lack of access to the internet/unreliable internet connection (≈32%) or due to lack of adequate equipment (≈31%).

Figure 4: Disadvantages of the digitalisation of EU cross-border judicial procedures

Right to a fair trial and defence

More than two thirds (≈68%) of the stakeholders do not see in the digitalisation of cross-border judicial cooperation a threat to the right to a fair trial and the defence rights. Less than one fifth of the respondents (≈18%) perceive a threat to these rights.

Figure 5: Could digitalisation of cross-border judicial cooperation adversely affect the right to a fair trial and defence rights?

Risk of exclusion of individuals and businesses, including SMEs

A majority (≈54%) of the respondents to the question below identify that digitalisation of cross-border judicial cooperation could exclude individuals and businesses, including SMEs.

Figure 6: In the context of a possible transition to an electronic channel of communication for EU cross-border judicial cooperation procedures: a) do you consider that there are risks of exclusion of individuals and businesses (including SMEs) if the electronic channel becomes the default one (e.g. owing to lack of internet access, low digital skills, vulnerability or due to other reasons)?

Preferred scenario for digitalisation of EU cross-border judicial cooperation

Electronic communication between courts and other competent authorities of Member States

Roughly 80% of the respondents would prefer electronic cooperation between courts and other competent authorities of Member States to be mandatory, for only ≈15% that would prefer it to be optional. Among public authorities, ≈68% of them would like to have mandatory digitalisation of cross-border judicial cooperation, for ≈26% of them that would prefer this to be optional.

Figure 7: Electronic communication of individuals/businesses with the courts and other competent authorities of the Member States should be...

Electronic communication of individuals/businesses with the courts and other competent authorities of the Member States

Support for mandatory digitalisation of cross-border electronic communication of individuals and businesses with the courts and other authorities is relatively smaller, but majoritarian, with two thirds (≈67%) of the respondents supporting this option.

Figure 8: Electronic communication of individuals/businesses with the courts and other competent authorities of the Member States should be...

   Aspects of digitalisation to be regulated through a new EU legal instrument

There is widespread support for the regulation of four aspects of digitalisation of cross-border judicial cooperation to be regulated in a new EU legal instrument. A large majority of consulted stakeholders (≈88%) indicate that the mandatory or optional nature of electronic communication with and between competent national authorities should be regulated. The legal validity of electronic documents and evidence should be subject to regulation for more than fourfifths of the respondents (≈82%). The regulation of the conditions for the use of electronic signature/seals (≈74%) and the responsibilities for data protection obligations (≈68%) also enjoy wide support.

Figure 9: In case it is decided to propose a new EU legal instrument, what aspects of digitalisation should it regulate?

   Most adequate legal channel for communication between authorities across borders

Roughly 66% of the respondents prefer the electronic format as the most adequate for communication between judicial and other competent authorities across borders, while approximately 29% of the respondents think that the combination of paper-based and electronic communication is preferred. 33 (≈37%) respondents out of 89 respondents of the survey did not indicate any opinion.

Figure 10: Which communication channel do you think is most appropriate for communication between judicial and other competent authorities across borders?

   Involvement of EU bodies and services

The involvement of EU bodies and/or services in the digital channels of communication is thought to bring added value for a large majority of the respondents to the specific question (≈68%). The reasons why respondents argue that this would deliver added value will be explored in the final analysis.

14 (≈25%) respondents out of 89 respondents of the survey replied that they were undecided and 7% did not reply to the question at all.

Figure 11: Do you consider that the involvement of EU bodies and/or services (such as the EPPO, OLAF, Eurojust) in the digital channels of communication would bring added value to the overall concept of digitalisation of judicial cooperation?

   Benefits of from an EU-developed IT solution

Two-thirds of the respondents to the question below indicate that they would directly benefit from and EU-developed IT solution provided to them in the context of a possible transition to an electronic channel of communication for EU cross-border judicial cooperation procedures. 15 (≈27%) respondents out of 89 respondents of the survey indicated that they were undecided whereas the remaining 6% of the respondents did not answer to this question at all.

Figure 12: In the context of a possible transition to an electronic channel of communication

Optimum way to achieve full digitalisation of cross-border judicial procedures at the European level

A majority of the respondents (≈57%) indicate that the best way of achieving full digitalisation of cross-border judicial procedures at the EU level would be by adopting one EU legal instrument which provides for the digitalisation of all cross-border civil, commercial and criminal procedures. Less than one-fourth (≈22%) of the respondents are in favour adopting a series of amendments to civil, commercial and criminal EU law instruments for the digitalisation of cross-border judicial procedures, and one-seventh of the respondents (≈14%) would prefer a promotional campaign regarding the use of the various channels of communication without mandating their use.

Figure 13: What would be the best way to achieve full digitalisation of cross-border judicial procedures at the European level?

Annex 3: Who is affected and how?

1. Practical implications of the initiative

The preferred policy option would affect the following stakeholders:

1.1.Citizens

Introducing digital use for enhancing access to justice for cross-border cases in civil, commercial and criminal matters will affect the citizens. The possibility for the citizens to file claims and to digitally communicate with the courts and competent authorities, as well as the possibility to participate in oral hearings through videoconference or other distance communication technology will ensure improved access to justice in cross-border procedures, once they are digitalised. While the current possibilities for submission of claims online is limited to a few Member States and mainly under pilot projects, this will now be extended to cover all Member States. As a consequence, barriers for citizens to take action will be reduced. The use of digital tools will not require significant costs or investments on the part of the citizens. What would be needed is a computer and access to the internet. In order to ensure that citizens who lack digital skills, who live in remote areas or whose personal capacity does not allow them a seamless access to the digital tools, the paper based communication will be maintained.

1.2.Businesses and SMEs

The businesses will be affected by the new initiative in a similar manner as the citizens. All legal entities will have the possibilities to digitally communicate with the courts and the competent authorities and to take part of oral hearings though a videoconference or other distance communication technology. The paper-based communication will be maintained for the legal entities as for the citizens. There are no specific costs that are foreseen for businesses – in order to make use of the digital communication, they need to possess a computer and to have access to the internet. The businesses will benefit from the improved access to justice and more efficient protection of their rights, which is expected to have a beneficial effect on and to boost the cross-border trade.

Similarly, SMEs involved in cross-border transactions are expected to benefit directly from the improved access to justice, as well as from lower costs and shorter proceedings when enforcing their rights across borders. This could also give impetus to the SMEs to engage more in cross-border transactions within EU. The lower costs of proceedings will have an indirect effect by improving the competitiveness of the SMEs.

1.3. Legal professionals

Lawyers will be able to use the access point on the e-Justice portal or where established the national portals of the Member States, to electronically sign and send claims and other submissions in cross-border cases under the respective EU instruments to competent courts and authorities in the Member States. The bailiff and notaries who are competent to act under the EU instruments for judicial cooperation in civil matters would communicate between themselves and with the courts and the other competent authorities through the IT system which will be based on e-CODEX. To that end, the bailiffs and the notaries will need to be connected to the system, through the access point of the respective Member State, where they perform their duties.

1.4.National courts and other competent authorities

The e-CODEX based IT system will be used to facilitate the communication between the courts and competent authorities and where relevant the JHA agencies and EU bodies in the context of the cross-border judicial cooperation procedures. The digital channel will be used to transmit documents, requests, forms, messages and data from the courts/authorities of one Member State to courts/authorities in another Member State, with the purpose of conducting the proceedings as foreseen under the rules of the respective EU instruments. The processing of the communication will be similar to the exchange of requests, forms and documents under the recently adopted recasts of service of documents and taking of evidence regulations.

It is expected that Member States will incur one-off expenditures for installing the national access points interconnecting the national IT systems in the context of the decentralised IT system. Furthermore, each Member State will have to bear the costs for the operation and maintenance of its access points, as well as for establishing and adjusting its national IT systems to make them interoperable with the access points and for administering, operating and maintaining those systems. Member States will be free to use the Reference Implementation software which the Commission will develop for them, instead of their national IT systems. The e-CODEX tool is an open-source solution that could be used free of charge. All these extra costs from national authorities go alongside with co-financing from the European Commission. It should be highlighted that some Member States already possess and operate a pilot version of e-CODEX, which they may reinstall and upgrade for the current purposes. Similarly, eEDES and the decentralised IT system for the service of documents and taking of evidence recast Regulation, which is currently being set up, could also be re-used. These electronic systems follow a multifunctional approach for other digitalised EU mechanisms in order to avoid unnecessary expenses.

Courts and competent authorities, which are not equipped with videoconferencing tools, will have to invest in buying such equipment, if they are planning to use the possibility to organise remote hearings.

Finally, improving the efficiency of the communication in the context of cross-border judicial cooperation and access to justice by employing digital tools, will probably lead to an increased use of the EU instruments for cross-border judicial cooperation in civil, commercial and criminal matters. That would bring about an increase in the costs for the national judicial systems.

It is expected that in the medium and long term, all these costs will be offset by the expected decrease in the length of proceedings, the expected decrease of the time for processing the cases, by the alleviated administrative burden and also by reducing the cost for the communication itself (the costs for sending electronic communication is lower than the costs for sending postal packages).

Summary of costs and benefits

Annex 4: Analytical methods

4.1 Methodology used to collect data

The evidence, relevant data and information collected to support the Impact Assessment were collected from the following sources:

·Study by an external contractor;

·Public consultation;

·Other sources of information – EU Justice Scoreboard and the accompanying factsheets; Eurostat surveys, data collected by CEPEJ; statistics on the European e-Justice Portal.

The data used in the Impact Assessment is largely based on the Study. The methodological approach used by the external contractor builds upon a variety of research methods to ensure that all relevant data is gathered to perform an in-depth assessment of the selected policy options and their impacts: (1) primary data collection methods (e.g. interviews, focus groups, workshop); (2) secondary data collection methods (e.g. desk research, national legal mapping in all 26 Member States (all Member States except Denmark), legal review of EU standards, literature review etc.); (3) quantitative analysis (e.g. costs benefits analysis) and (4) qualitative analysis methods (e.g. content analysis). The policies and legislation are assessed transparently, based on factual evidence and considering the views of the stakeholders concerned.

Specifically, the following stakeholder consultation activities were undertaken:

·EU level focus group;

·National stakeholder consultation on impacts of policy options

oNational-level survey;

oFocus groups at national level    ;

·Validation by stakeholders.

EU level focus group

The EU-level focus group was held online on May 4, 2021. The aim of the focus group was to bring together the EU-level stakeholders that have knowledge and/or interest in the topic concerned in order to:

·Identify and discuss synergies with existing and planned digital channels of communication with the JHA agencies, EJN-criminal, and JITs;

·Analyse and discuss coherence with the e-IDAS and EU identity initiatives;

·Identify technical solutions that could be proposed for the purposes of digitalisation of cross-border judicial cooperation;

·Identify and analyse problems and issues related to the use of digital solutions in communications between the competent authorities of the Member States and between those authorities and the parties to the proceedings;

·Discuss potential impacts of the various proposed policy options, including impacts on fundamental rights, such as the right to a fair trial, right to defence, the right to data protection.

The focus group gathered representatives from relevant EU agencies (Eurojust, EU-Lisa, European Judicial Network in criminal matters, European Judicial Network in civil matters, FRA), institutions involved in EU pilots on digitalisation of cross-border communication (The e-CODEX consortium, E-Evidence group), consumer associations, legal and judicial practitioners, and NGOs.

National stakeholder consultation on impacts of policy options

The national-level targeted stakeholder consultation was concentrated around a limited number of Member States (15 Member States), on the basis of the following criteria:

·geographical criteria, e.g., larger and smaller Member States, Western and Eastern Member States, Northern and Southern Member States;

·Level of digitalisation of justice system, as assessed by the Justice Scoreboard, having Member States with high, medium and low levels of digitalisation;

·Participation in EU pilot projects, such as those for the e-Codex (e.g. European Payment Order, Small Claims procedures);

·Type of legal system.

The following Member States were selected for the national-level targeted stakeholder consultation: Austria, Belgium, Croatia, Czechia, Estonia, Finland, France, Ireland, Italy, Luxembourg, Poland, Portugal, Romania, Spain and Sweden.

The national stakeholder consultation was carried out by means of a (1) national-level survey of selected stakeholder groups in the 15 representative Member States; (2) national-level focus group with key stakeholders from the 15 representative Member States.

National-level survey

The national-level survey in the selected 15 Member States aimed to:

·Collect information for testing the legal, technical and political feasibility of the policy options, their efficiency and effectiveness, proportionality and relevance for the different categories of impacted stakeholders;

·Gather additional qualitative and quantitative inputs on the likely consequences of the policy options, to be included in the analysis of impacts and comparison of the options.

The following groups of stakeholders were targeted by this exercise:

oNational Authorities, most specifically Ministries (e.g. Justice, Interior etc.), IT departments and agencies;

oNational contact points of Eurojust and the EJN-civil and EJN-criminal; 

oOrganisations representing judges, prosecutors and courts in civil/criminal/commercial areas;

oOrganisations representing legal/judicial practitioners in the civil, commercial and criminal justice system (lawyers, notaries, bailiffs);

oConsumers’ organisations;

oNGOs involved in projects promoting digitalisation in judicial cooperation;

oNGOs representing citizens interests (e.g. NGOs providing legal support in cross-border proceedings);

oChambers of Commerce or Business Associations providing legal support services in cross-border proceedings to businesses (including SMEs).

The questionnaire for the national-level stakeholder consultation remained open in the online survey platform Surveygizmo for approximately four weeks. Information about the survey was disseminated among relevant stakeholder groups, with follow-up and assistance provided, whenever necessary.

Data collected through the national-level focus group feeds into the analysis of policy options and their impacts, as well as into the comparison of policy options.

Focus groups at national level

The focus group at national level was carried out online on the 15th July 2021. The objective of the national-level focus group was to obtain an in-depth exploration of views of national-level stakeholders on the proposed policy options and their potential impact on various stakeholder groups. A total of 15 to 20 participants from the selected Member States were invited, and an equal representation of all relevant stakeholder groups ((Legal practitioners; Business organisations; Consumers organisations; NGOs providing legal assistance and representation) was ensured. While mainly qualitative information was collected through the focus group discussions, an attempt was made to also collect as much quantitative information as possible.

Data collected through the national-level focus group feeds into the analysis of policy options and their impacts, as well as into the comparison of policy options.

4.2. Methodology used to compare the policy options

The comparison of the policy options was performed based on their impacts. The policy options have been compared systematically, and their impacts presented in a user-friendly format. Strengths and weaknesses have been identified both qualitatively and quantitatively, to the extent possible. Specifically, each option has been evaluated with regard to how it addresses the identified problems.

The table below outlines the criteria used for the comparison of policy options.

Table 3 - criteria used for the comparison of policy options

The application to each of the above criteria is described below to the identified policy options is explained below:

Coherence refers to synergies between the proposed options and existing initiatives such as e-CODEX, eEDES, the new e-identity initiative by the Commission and the digital solutions under the Digital Criminal Justice Study. Under this aspect, similarities and complementarities between initiatives on the one hand, and potential contrasts and discrepancies between them on the other hand have been detected. The final aim of this analysis was to identify the policy option(s) which would ensure the highest level of coherence with the existing initiatives. Moreover, coherence refers also to the level of harmonisation of the legal frameworks across Member States, involved under each option. In this regard, the options aimed to reduce legal fragmentation across countries, thus eliminating uncertainty for individuals and legal entities were identified. Finally, coherence was examined with regard to the existing EU instruments in civil/commercial and criminal law.

Effectiveness analysis considered how successful the proposed options would be in achieving or progressing towards their objectives. It examined whether the objectives of the initiative will likely be achieved or not.

Efficiency looked closely to the extent possible at both the likely costs and benefits of the proposed options as they accrue to different stakeholders, identifying what factors were driving these costs/benefits and how these factors related to the examined options.

The efficiency analysis was based on quantitative information collected through a national-level online survey, as well as through bilateral e-mail exchanges with representatives of Member States’ authorities. Since the quantitative information gathered was heterogeneous, to overcome the encountered limitation of lacking comparable national-level quantitative data, the efficiency analysis was complemented with qualitative information (description of processes and types of costs and benefits deriving from the options), collected through interviews with various stakeholder groups in different Member States. The consultation with the relevant stakeholders revealed that little to no statistical data is collected by the Member States on the number of the cross-border cases, the cost and the length of the cross-border proceedings. Therefore statistical inferences had to be made. Similarly, data on the means of communication between the courts/competent authorities is not systematically collected. Therefore, the analysis was based on the limited data collected through bilateral interviews with some of the stakeholders and estimations were made on that basis.

The EU added value considered the arguments about the value resulting from the proposed options that is additional to the value that would have resulted from interventions initiated at national levels.

Annex 5: COVID19 impact on civil proceedings – national measures

Table 4 - Comparative Table of 14 April 2020