COM(2018) 364 final
COMMUNICATION FROM THE COMMISSION
The 2018 EU Justice Scoreboard
This document is an excerpt from the EUR-Lex website
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS The 2018 EU Justice Scoreboard
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS The 2018 EU Justice Scoreboard
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS The 2018 EU Justice Scoreboard
COM(2018) 364 final
COMMUNICATION FROM THE COMMISSION
The 2018 EU Justice Scoreboard
Effective justice systems play a crucial role for upholding the rule of law and the values upon which the EU is founded. In his 2017 State of the Union address, the President of the European Commission clearly stated that ‘The rule of law is not optional in the European Union. It is a must. The rule of law means that law and justice are upheld by an independent judiciary’ ( 1 ). The European Commission’s First Vice President, Frans Timmermans, also underlined that ‘Respect for the rule of law is not only a prerequisite for the protection of all the fundamental values listed in Article 2. It is also a pre-requisite for upholding all rights and obligations deriving from the Treaties and for establishing mutual trust of citizens, businesses and national authorities in the legal systems of all other Member States’ ( 2 ).
The independence, quality and efficiency of justice systems are key for the implementation of EU law and for the strengthening of mutual trust. They contribute significantly to building an investment-friendly environment and maintaining sustainable growth. Improving the effectiveness of national justice systems has therefore become a well-established priority of the European Semester — the EU’s annual cycle of economic policy coordination. The Annual Growth Survey 2018, which identifies the economic and social priorities for the EU and its Member States for the year ahead, recognises the link between a business-friendly environment on the one hand and the rule of law and improvement in the independence, quality and efficiency of justice systems on the other ( 3 ).
When applying EU law, national courts act as EU courts and ensure that the rights and obligations provided under EU law are enforced effectively ( 4 ). The very existence of that effective judicial protection, designed to ensure compliance with EU law, is the essence of the rule of law. In its recent ruling the European Court of Justice underlined that in order to ensure judicial protection, the independence of national courts is essential ( 5 ). Given that effective judicial protection by independent courts is also an essential precondition for sound financial management, the Commission, on 2 May 2018, proposed a Regulation on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States ( 6 ).
The 2018 EU Justice Scoreboard (‘the Scoreboard’) develops the overview of indicators concerning the independence, efficiency and quality of the national justice systems. In particular, this edition:
-Develops the indicators on judicial independence, particularly on the Councils for the Judiciary and on the involvement of the executive and the parliament in the appointment and dismissal of judges and court presidents.
-Develops the sections on criminal justice systems by presenting updated data on money-laundering criminal offences and introducing some indicators on the organisation of prosecution services in the Member States.
-Further develops the end-user perspective by presenting indicators on how the needs of specific groups of users of justice systems (e.g. children, visually impaired people, non-native speakers) are being taken into account in the provision of public information on the justice system, in the training of judges, and in surveys of court users or legal professionals. It also presents indicators on how courts use social media to communicate about their work.
-Presents a new overview of the use of structural funds for justice reforms.
-Presents for the first time data on the length of proceedings in all court instances (first, second and third court instance) for the litigious civil and commercial, and administrative cases.
-Continues the examination of standards and presents a more in-depth examination of time frames as measurable targets or practices related to managing the caseload of courts and of selected practices related to managing backlogs.
Although data are still lacking for some Member States, the data gap continues to decrease, in particular for indicators on the efficiency of justice systems. The fruitful cooperation with Member States’ contact points on national justice systems and various committees and European judicial networks have enriched the data significantly. The remaining difficulties in gathering data are often due to insufficient statistical capacity or to the fact that the national categories for which data are collected do not exactly correspond to the ones used for the Scoreboard. In very few cases, the data gap is due to the lack of willingness of certain national authorities to contribute. The Commission will continue to encourage Member States to further reduce this data gap.
What is the EU Justice Scoreboard?
The EU Justice Scoreboard is a comparative information tool that aims to assist the EU and Member States to improve the effectiveness of their national justice systems by providing objective, reliable and comparable data on a number of indicators relevant for the assessment of the quality, independence and efficiency of justice systems in all Member States. The Scoreboard does not present an overall single ranking but an overview of how all the justice systems function, based on various indicators that are of common interest for all Member States.
The Scoreboard does not promote any particular type of justice system and treats all Member States on an equal footing.
Independence, quality and efficiency are essential parameters of an effective justice system, whatever the model of the national justice system or the legal tradition in which it is anchored. Figures on these three parameters should be read together, as all three elements are necessary for the effectiveness of a justice system and are often interlinked (initiatives aimed at improving one of them may have an influence on the other).
The Scoreboard mainly focuses on litigious civil and commercial cases as well as administrative cases in order to assist Member States in their efforts to create a more investment, business and citizen-friendly environment. The Scoreboard is a comparative tool which evolves in dialogue with Member States and the European Parliament ( 7 ). Its objective is to identify the essential parameters of an effective justice system.
What is the methodology of the EU Justice Scoreboard?
The Scoreboard uses various sources of information. Large parts of the quantitative data are provided by the Council of Europe Commission for the Evaluation of the Efficiency of Justice (CEPEJ) with which the Commission has concluded a contract to carry out a specific annual study. These data cover the period from 2010 to 2016, and have been provided by Member States according to CEPEJ’s methodology. The study also provides detailed comments and country-specific factsheets that give more context. They should be read together with the figures ( 8 ).
Data on the length of proceedings collected by CEPEJ show the ‘disposition time’ which is a calculated length of court proceedings (based on a ratio between pending and resolved cases). Data on courts’ efficiency in applying EU law in specific areas show the average length of proceedings derived from actual length of court cases. It should be noted that the length of court proceedings may vary substantially geographically within a Member State, particularly in urban centres where commercial activities may lead to a higher caseload.
Other sources of data are: the group of contact persons on national justice systems, ( 9 ) the European Network of Councils for the Judiciary (ENCJ) ( 10 ), the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC) ( 11 ), Association of the Councils of State and Supreme Administrative Jurisdictions of the EU (ACA-Europe) ( 12 ), the European Competition Network (ECN) ( 13 ), the Communications Committee (COCOM) ( 14 ), the European Observatory on infringements of intellectual property rights ( 15 ), the Consumer Protection Cooperation Network (CPC) ( 16 ), the Expert Group on Money Laundering and Terrorist Financing (EGMLTF) ( 17 ), Eurostat ( 18 ), the European Judicial Training Network (EJTN) ( 19 ), the Council of Bars and Law Societies of Europe (CCBE) ( 20 ) and the World Economic Forum (WEF) ( 21 ).
The methodology for the Scoreboard has been further developed in close cooperation with the group of contact persons on national justice systems, particularly through a questionnaire and collecting data on certain aspects of the functioning of justice systems.
How does the EU Justice Scoreboard feed into the European Semester?
The Scoreboard provides elements for the assessment of quality, independence and efficiency of national justice systems and thereby aims at helping Member States to improve the effectiveness of their national justice systems. This makes it easier to identify shortcomings and best practices and to keep track of challenges and progress. In the context of the European Semester, country-specific assessments are carried out through bilateral dialogue with the national authorities and stakeholders concerned. This assessment is also based on a qualitative analysis and takes into account the characteristics of the legal system and the context of the Member States concerned. It may lead to the Commission proposing to the Council to adopt country-specific recommendations on the improvement of national justice systems.
Why are effective justice systems relevant for the European Semester?
The positive economic impact of the well-functioning justice systems also justifies these efforts. A 2017 study by the Joint Research Centre identifies correlations between the improvement of court efficiency and the growth rate of the economy, and businesses’ perception of judicial independence and the growth in productivity ( 22 ). Where judicial systems guarantee the enforcement of rights, creditors are more likely to lend, businesses are dissuaded from opportunistic behaviour, transaction costs are reduced and innovative businesses are more likely to invest.
The importance of the effectiveness of national justice systems for small and medium-sized enterprises (SMEs) has been highlighted in a 2015 survey of almost 9 000 European SMEs on innovation and intellectual property rights (IPR) ( 23 ). The survey revealed in particular that cost and excessive length of judicial proceedings were among the main reasons for not starting court proceedings over infringement of IPR. The beneficial impact of well-functioning national justice systems for the economy is underlined in a range of literature and research ( 24 ), including from the International Monetary Fund ( 25 ) the European Central Bank ( 26 ), the OECD ( 27 ), the World Economic Forum ( 28 ), and the World Bank ( 29 ).
2. Context: Justice reforms must uphold the Rule of Law
Since 2013, the EU is encouraging Member States to improve the independence, quality and efficiency of their justice system. Reforms should not be undertaken for the sake of reforming, but in a manner which upholds the rule of law and complies with European standards on judicial independence.
2.1. Justice reforms are ongoing in many Member States
In 2017, a large number of Member States continued efforts to improve the effectiveness of their justice systems. Figure 1 presents an overview of adopted and envisaged justice reforms. It is a factual presentation of ‘who does what,’ without any qualitative evaluation.
Figure 1: Legislative and regulatory activity concerning justice systems in 2017 (adopted measures/initiatives under negotiation per Member State) (source: European Commission ( 30 ))
Figure 1 shows that procedural law continues to be an area of particular focus in many Member States and that a significant amount of new reforms have been adopted or announced for further information and communication technologies (ICT) development, alternative dispute resolution methods (ADR), legal aid, reform of judicial maps and legislation on judges and the legal professions. A comparison with the 2017 Scoreboard shows that the level of activity gathered further momentum, both for adopted reforms and measures planned for the future. This needs to be set against the fact that justice reforms take time − sometimes several years from the first announcement of new reforms until the adoption of legislative and regulatory measures and their actual implementation.
2.2. Monitoring of justice reforms at EU level
At EU level, a number of instruments and mechanisms are used by the Commission to monitor reform efforts undertaken by Member States. This is done in close cooperation with the European Network of Councils for the Judiciary, Network of the Presidents of the Supreme Judicial courts of the European Union and the Association of the Councils of State and Supreme Administrative Jurisdictions of the EU.
− Monitoring through the European Semester –
The European Semester is the EU’s annual cycle of economic and fiscal policy coordination and part of the EU’s economic governance framework. Justice reform is a well-established priority of the structural reforms encouraged through the European Semester. This priority derives from the fact that the rule of law and improvement in the independence, quality and efficiency of justice systems are crucial for a business-friendly environment ( 31 ).
The European Semester cycle starts every year in November when the Commission presents its priorities for the next year (Communication on the Annual Growth Survey). In March, the Commission services present country specific assessments covering all matters dealt with by the Semester in the Country Reports. In May, the Commission presents its proposals for the country specific recommendations that are addressed to Member States. These recommendations are adopted by the Council in July after having been endorsed by the European Council.
Monitoring justice reforms relies on two tools: (i) the comparative tool, the EU Justice Scoreboard, and (ii) the country-specific assessments, the Country Reports, which contextualise and take account of the characteristics of the legal systems of the Member States concerned. Country-specific assessments are carried out through a bilateral dialogue with the national authorities and stakeholders concerned. The combined outcome of these two tools may lead the Commission proposing to the Council to adopt country-specific recommendations on improving national justice systems.
In the 2017 European Semester, based on a proposal from the Commission, the Council addressed country-specific recommendations to five Member States relating to their justice system ( 32 ). In addition to those Member States subject to country specific recommendations, a further 11 Member States are facing specific challenges and are being monitored by the Commission through the European Semester ( 33 ). It should also be noted that justice reforms in Greece are closely being monitored in the context of the Third Economic Adjustment programme for Greece.
Member States can also draw on the Commission’s technical support through the Structural Reform Support Service. In 2017, nine Member States ( 34 ) received or requested technical support from this service, for example on the efficiency of the court administration system, reform of the judicial map, on the design or implementation of e-justice programmes and on the selection and promotion process for judges. In December 2017, the Commission also presented a reform delivery tool to support Member States’ reform efforts on the basis of the challenges identified in the European Semester process.
− The Rule of Law Framework –
Beyond the regular monitoring of justice reforms in the context of the European Semester, the Commission in 2014 established a crisis mechanism to address systemic threats to the Rule of Law in any of the EU-28 Member States ( 35 ). This Rule of Law Framework allows the Commission to enter into a dialogue with the Member State concerned to prevent the escalation of systemic threats to the rule of law. The purpose of the Framework is to enable the Commission together with the Member States concerned to find a solution in order to prevent the emergence of a systemic threat to the rule of law that could develop into a situation which would potentially trigger the use of the ‘Article 7 Procedure’.
The Commission opened a dialogue with the Polish authorities in January 2016 under the Rule of Law Framework. Despite three Rule of Law Recommendations and repeated efforts, for almost two years, to engage the Polish authorities in a constructive dialogue in the context of the Rule of Law Framework, the Commission concluded on 20 December 2017 that there is a clear risk of a serious breach of the rule of law in Poland. The Commission adopted a fourth Rule of Law Recommendation regarding the rule of law in Poland, setting out the Commission’s concerns and recommending how these concerns can be addressed ( 36 ). The Commission also proposed to the Council to adopt a decision under Article 7(1) of the Treaty on European Union on the determination of a clear risk of a serious breach of the rule of law ( 37 ).
− The Cooperation and Verification Mechanims –
The Cooperation and Verification Mechanism (CVM) was set up at the accession of Bulgaria and Romania to the European Union in 2007 ( 38 ) to address shortcomings in judicial reform and the fight against corruption and, for Bulgaria, organised crime. Since then, CVM reports have sought to help focus the efforts of the Bulgarian and Romanian authorities through specific recommendations, and have charted the progress made ( 39 ). As underlined by the Council ( 40 ), the CVM will end when all benchmarks applying to Bulgaria and to Romania respectively are satisfactorily met.
In the January 2017 CVM report, the Commission took stock of ten years of CVM with an overview of the achievements, the challenges outstanding, and set out the key remaining steps needed to achieve the CVM's objectives. To this end, the Commission made key recommendations that if followed up will lead to the conclusion of the CVM process, except if developments were to clearly reverse the course of progress. The report highlighted that the speed of the process would depend on how quickly Bulgaria and Romania will be able to fulfil the recommendations in an irreversible way and also on avoiding negative steps which call into question the progress made in past 10 years.
− Infringement proceedings –
The Commission is committed to pursuing cases where national law prevents national judicial systems from ensuring that EU law is applied effectively in line with the requirements of the rule of law and Article 47 of the Charter on Fundamental Rights of the EU ( 41 ).
In this context, the Commission in December 2017 decided to refer the Polish Government to the European Court of Justice for breach of EU law by the Law on the Ordinary Courts Organisation. This infringement procedure relates, first, to the discrimination on the basis of gender due to the introduction of a different retirement age for female judges (60 years) and male judges (65 years). This is contrary to Article 157 of the Treaty on the Functioning of the European Union (TFEU) and Directive 2006/54 on gender equality in employment. Second, the infringement procedure relates to the independence of Polish courts which is undermined by the discretionary power given to the Minister of Justice to prolong the mandates of judges who have reached the lowered retirement age (see Article 19(1) TEU in combination with Article 47 of the Charter of Fundamental Rights) ( 42 ).
The importance for Member States to ensure the independence of national courts, as a matter of EU law, has been highlighted by the recent European Court of Justice case referred to above ( 43 ) and by a recent request for a preliminary ruling from the Irish High Court to the European Court of Justice on a European Arrest Warrant issued in Poland ( 44 ).
2.3. European Structural and Investment Funds support national justice systems
The Commission financially supports certain justice reforms through the European Structural and Investment Funds (ESI Funds).
Since 2007, 16 Member States have used ESI Funds to improve the effectiveness of their justice systems. Between 2007 and 2023, these Member States will have spent more than EUR 900 million to increase the efficiency and improve the quality of their justice systems ( 45 ). Funded activities include:
·improving business processes in courts by introducing case management systems or a human resources strategy;
·digitalising the judiciary by establishing e-services for citizens and businesses;
·providing training to court staff and raising citizens’ awareness of their rights.
Figure 2 below shows that ESI Funds activities have been broadly grouped in categories that reflect the objectives of the projects. Often, individual project covered several types of activities (e.g. ADR/ODR methods, Digitalisation and ICT, and training). The financially most important activity was digitalisation and ICT of the justice system to where 14 out of the 16 Member States allocated funding. Until mid-2017, only Croatia and Malta had not allocated any ESI Funds on digitalisation and ICT. While activities contributing to improving internal processes and supporting training and awareness raising were of significantly less financial importance, the number of Member States that allocated funding was nevertheless significant (12 out of 16).
Figure 3 shows that most Member States opted to spread the ESI Funds dedicated to the justice system across a number of different types of activities while only a few others focused on one category. Spain and Portugal allocated the funding exclusively to digitalisation and ICT and Malta and Croatia to training and awareness raising. Many of those Member States that attributed a significant share of their ESI Funds to digitalisation and ICT are among those where lawyers report a rather frequent use of ICT in exchanges between courts and lawyers ( 46 ). In contrast, in those Member States with a low or no allocation to digitalisation and ICT the use of ICT for exchanges with courts is very limited.
The Commission will pay particular attention to ensure that EU funds are adequately used for the appropriate reforms in line with rule of law. The Commission emphasises the importance of taking a result-oriented approach when implementing the funding priorities and calls upon Member States to evaluate the impact of ESI Funds support.
The figures below show the amounts spent and allocated to the justice system since 2007 ( 47 ) in the 16 Member States that used the ESI Funds to support their justice systems.
Figure 2: Support for justice systems from Structural Funds by objective since 2007 (in million Euro) (source: Study prepared for the European Commission)
Figure 3: Support for justice systems from Structural Funds by objective and Member State since 2007 (source: Study prepared for the European Commission)
3. Key findings of the 2018 EU Justice Scoreboard
Efficiency, quality and independence are the main parameters of an effective justice system, and the Scoreboard presents indicators on all three.
3.1. Efficiency of justice systems
The Scoreboard presents indicators for the efficiency of proceedings in the broad areas of civil, commercial and administrative cases and in specific areas where administrative authorities and courts apply EU law ( 48 ).
3.1.1. Developments in caseload
The caseload of Member States’ justice systems is high but rather stable, even if it varies considerably between Member States (Figure 4). This shows the importance of continuing efforts to ensure the effectiveness of justice system. For the first time, the 2018 EU Justice Scoreboard also presents data on the incoming administrative cases (Figure 6).
Figure 4: Number of incoming civil, commercial, administrative and other cases (*) (1st instance/per 100 inhabitants) (source: CEPEJ study ( 49 ))
(*) Under the CEPEJ methodology, this category includes all civil and commercial litigious and non-litigious cases, non-litigious land and business registry cases, other registry cases, other non-litigious cases, administrative law cases and other non-criminal cases. Methodology changes in SK.
Figure 5: Number of incoming civil and commercial litigious cases (*) (1st instance/per 100 inhabitants) (source: CEPEJ study)
(*) Under the CEPEJ methodology, litigious civil/commercial cases concern disputes between parties, e.g. disputes regarding contracts. Non-litigious civil/commercial cases concern uncontested proceedings, e.g. uncontested payment orders. Methodology changes in EL and SK. Data for NL include non-litigious cases.
Figure 6: Number of incoming administrative cases (*) (1st instance/per 100 inhabitants) (source: CEPEJ study)
* Under the CEPEJ methodology, administrative law cases concern disputes between citizens and local, regional or national authorities. Methodology changes in EL and SK. DK and IE do not record administrative cases separately.
3.1.2. General data on efficiency
The indicators on the efficiency of proceedings in the broad areas of civil, commercial and administrative cases are: length of proceedings (disposition time); clearance rate; and number of pending cases.
− Length of proceedings –
The length of proceedings indicates the estimated time (in days) needed to resolve a case in court, meaning the time taken by the court to reach a decision at first instance. The ‘disposition time’ indicator is the number of unresolved cases divided by the number of resolved cases at the end of a year multiplied by 365 (days) ( 50 ). Figures mostly concern proceedings at first instance courts and compare, where available, data for 2010, 2014, 2015 and 2016 ( 51 ). Two figures show the disposition time in 2016 in civil and commercial litigious cases and administrative cases at all court instances.
Figure 7: Time needed to resolve civil, commercial, administrative and other cases (*)
(1st instance/in days) (source: CEPEJ study)
(*) Under the CEPEJ methodology, this category includes all civil and commercial litigious and non-litigious cases, non-litigious land and business registry cases, other registry cases, other non-litigious cases, administrative law cases and other non-criminal cases. Methodology changes in SK. Pending cases include all instances in CZ and, until 2016, in SK.
Figure 8: Time needed to resolve litigious civil and commercial cases (*)
(1st instance/in days) (source: CEPEJ study)
(*) Under the CEPEJ methodology, litigious civil/commercial cases concern disputes between parties, e.g. disputes regarding contracts. Non-litigious civil/commercial cases concern uncontested proceedings, e.g. uncontested payment orders. Methodology changes in EL and SK. Pending cases include all instances in CZ and, until 2016, in SK. Data for NL include non-litigious cases.
Figure 9: Time needed to resolve litigious civil and commercial cases (*) at all court instances in 2016 (1st, 2nd and 3rd instance/in days) (source: CEPEJ study)
Figure 10: Time needed to resolve administrative cases (*)(1st instance/in days) (source: CEPEJ study
Figure 11: Time needed to resolve administrative cases (*) at all court instances in 2016 (1st and, where applicable, 2nd and 3rd instance/in days) (source: CEPEJ study)
− Clearance rate –
The clearance rate is the ratio of the number of resolved cases over the number of incoming cases. It measures whether a court is keeping up with its incoming caseload. When the clearance rate is about 100 % or higher, it means the judicial system is able to resolve at least as many cases as that come in. When the clearance rate is below 100 %, it means that the courts are resolving fewer cases than the number of incoming cases.
Figure 12: Rate of resolving civil, commercial, administrative and other cases (*)
(1st instance/in % — values higher than 100 % indicate that more cases are resolved than come in, while values below 100 % indicate that fewer cases are resolved than come in) (source: CEPEJ study)
(*) Methodology changes in SK. IE: the number of resolved cases is expected to be underreported due to the methodology.
Figure 13: Rate of resolving litigious civil and commercial cases (*) (1st instance/in %) (source: CEPEJ study)
(*) Methodology changes in EL and SK. IE: the number of resolved cases is expected to be underreported due to the methodology. Data for NL include non-litigious cases.
Figure 14: Rate of resolving administrative cases (*) (1st instance/in %) (source: CEPEJ study)
− Pending cases –
The number of pending cases expresses the number of cases that remains to be dealt with at the end of the year in question. It also influences the disposition time.
Figure 15: Number of pending civil, commercial and administrative and other cases (*) (1st instance/per 100 inhabitants) (source: CEPEJ study)
Figure 16: Number of pending litigious civil and commercial cases (*) (1st instance/per 100 inhabitants) (source: CEPEJ study)
(*) Methodology changes in EL and SK. Pending cases include all instances in CZ and, until 2016, in SK. Data for NL include non-litigious cases.
Figure 17: Number of pending administrative cases (*) (1st instance/per 100 inhabitants) (source: CEPEJ study)
3.1.3. Efficiency in specific areas of EU law
This section complements the general data on the efficiency of justice systems and presents the average length of proceedings ( 52 ) in specific areas when EU law is involved. The 2018 Scoreboard builds on previous data in the areas of competition, electronic communications, EU trademark, consumer protection, and anti-money laundering. The areas are selected because of their relevance for the single market and the business environment. In general, long delays in judicial proceedings may have negative consequences on rights stemming from EU law, e.g. when appropriate remedies are no longer available or serious financial damages become irrecoverable.
– Competition –
Effective enforcement of competition law ensures a level playing field for businesses and is therefore essential for an attractive business environment. Figure 18 below presents the average length of cases against decisions of national competition authorities applying Articles 101 and 102 TFEU ( 53 ).
Figure 18 Competition: Average length of judicial review (*) (1st instance/in days) (source: European Commission with the European Competition Network)
(*) EE: no cases. IE and AT: scenario is not applicable as the authorities do not have powers to take respective decisions. AT: data includes cases decided by the Cartel Court involving an infringement of Articles 101 and 201 TFEU, but not based on appeals against the national competition authority. An estimation of length was used in BG, IT. An empty column indicates that the Member State reported no cases for the year. The number of cases is low (below 5 per year) in many Member States, which can make the annual data dependent on one exceptionally long or short case. A number of the longest cases in the dataset included the time needed for a reference to the Court of Justice of the European Union (e.g. LT), a constitutional review (e.g. SK) or specific procedural delays (e.g. CZ, EL, HU).
– Electronic communications –
The objective of EU electronic communications legislation is to raise competition, to contribute to the development of the single market and to generate investment, innovation and growth. The positive effects for consumers can be achieved through effective enforcement of this legislation which can lead to lower end-user prices and better quality services. Figure 19 below presents the average length of judicial review cases against decisions of national regulatory authorities applying EU law on electronic communications ( 54 ). It covers a broad spectrum of cases, ranging from more complex ‘market analysis’ reviews to consumer-focused issues.
Figure 19 Electronic communications: Average length of judicial review cases (*) (1st instance/in days) (source: European Commission with the Communications Committee)
(*) The number of cases varies by Member State. An empty column indicates that the Member State reported no cases for the year. In some instances, the limited number of relevant cases (LT, MT, SE, LV, SK) can make the annual data dependent on one exceptionally long or short case and result in large variations from one year to the other. DK: quasi-judicial body in charge of 1st instance appeals. ES, AT, and PL: different courts in charge depending on the subject matter. MT: an exceptionally long case of 2 500 days was reported in 2016, which related to a complex issue whereby a local authority, together with several residents, filed proceedings in relation to alleged harmful emissions from base mobile radiocommunications stations.
– EU trademark –
Effective enforcement of intellectual property rights is essential to stimulate investment into innovation. EU legislation on EU trademarks ( 55 ) gives a significant role to the national courts, which act as EU courts and take decisions affecting the single market. Figure 20 below shows average length of EU trademark infringement cases in litigation among private parties.
Figure 20 EU trademark: Average length of EU trademark infringement cases (*) (1st instance/in days) (source: European Commission with the European Observatory on infringements of intellectual property rights)
(*) FR, IT, LT, LU: a sample of cases used for data of certain years. BG: estimation by courts used for 2016. PL: estimation by courts used for 2015. The number of relevant cases was limited (less than 5) in EE, IE, HR, LU and SI. Particularly long cases affecting the average reported in EE, IE, LV and SE. EL: data based on weighted average length from two courts. ES: cases concerning other EU IP titles are included in the calculation of average length.
– Consumer protection –
Effective enforcement of consumer law ensures that consumers benefit from their rights and that companies infringing consumer rules do not gain unfair advantage. Consumer authorities and courts play a key role in the enforcement of EU consumer law ( 56 ) within the various national enforcement systems. Figure 21 illustrates the average length of judicial review cases against decisions of consumer protection authorities applying EU law.
For consumers or companies, effective enforcement can involve a chain of actors, not only courts but also administrative authorities. To continue the examination of this enforcement chain, length of proceedings by consumer authorities is presented again. Figure 22 shows the average length of administrative decisions by national consumer protection authorities in 2014-2016 from the moment a case is opened. Relevant decisions include declaring infringements of substantive rules, interim measures, cease and desist orders, initiation of court proceedings or case closure.
Figure 21 Consumer protection: Average length of judicial review (*) (1st instance/in days) (source: European Commission with the Consumer Protection Cooperation Network)
(*) BE, LU, AT, FI, SE and UK: scenario is not applicable as consumer authorities not empowered to decide on infringements of relevant consumer rules. In some of these Member States (e.g. FI and SE) consumer authorities can initiate actions in court, or contact the public prosecutor (BE). DE: administrative authorities can adopt decisions in cross-border cases only, but no relevant cases occurred as the Federal Ministry of Justice and Consumer Protection instructed other qualified entities to take enforcement measures. Some Member States have mixed systems (BG, DK, EE, IE, ES and LT) where consumer authorities have to bring court actions on some rules (e.g. unfair contract terms in BG and CY). DE and AT: Mostly civil enforcement in consumer law through consumers or private/semi-private bodies. ES: data covers a limited number of Autonomous Communities. The number of relevant cases is low (less than five) in DK, EE and IE. An estimate of average length was provided by EL, PL and RO. The powers of some authorities include only parts of the relevant EU consumer law.
Figure 22 Consumer protection: Average length of administrative decisions by consumer protection authorities (*) (1st instance/in days) (source: European Commission with the Consumer Protection Cooperation Network)
(*) BE, DE, LU, AT: scenario is not applicable. SE: change in regulation allowed an authority to adopt a relevant decision issuing a conditional fine. CZ: all decisions, including non-final decisions of the authority, were included in the calculation of the average length. PL: data includes only proceedings where a decision was issued and does not include proceedings that were formally discontinued. DK: a variation in average length compared to previous years can be explained by a change in methodology. NL: data covers decisions in which an administrative fine was imposed because of infringement of substantive rules. ES: data covers a limited number of Autonomous Communities. Some Member States indicated that they also use informal instruments to enforce consumer law, which are generally successful (NL, LU) or compliance is reached without a decision of an authority (MT). An estimate or a range of an average length was provided by EL, IE, RO and FI. In case of a minimum and maximum range, the figure shows an average. Some authorities are competent for only parts of relevant EU law.
– Provisional measures –
Provisional measures decided by courts include temporary injunctions and seizure of goods aimed at deterring or preventing an imminent infringement before the final resolution of a case. Efficiency of proceedings for provisional measures is particularly important, as they are often used in cases of urgency where delays could lead to irreparable harm for the claimant. Figure 23 below illustrates the average time needed to obtain a decision of a national court on a request for the application of provisional or interim measures to stop infringements of EU trademarks ( 57 ) and of electronic communications rules ( 58 ). The figure shows the average length of proceedings in these areas where decisions were taken in 2015 and 2016.
Figure 23 Provisional measures: Average length of provisional measures in 2015 and 2016 (*) (1st instance/in days) (source: European Commission with the European Observatory on infringements of intellectual property rights and the Communications Committee)
– Money Laundering –
In addition to contributing to the fight against crime, the effectiveness of the fight against money laundering is crucial for the soundness, integrity and stability of the financial sector, the confidence in the financial system and fair competition in the single market ( 59 ). As underlined by the International Monetary Fund, money laundering can discourage foreign investment, distort international capital flows and have negative consequences for a country’s macroeconomic performance, resulting in welfare losses, draining resources from more productive economic activities ( 60 ). The anti-money laundering Directive requires Member States to maintain statistics on the effectiveness of their systems to combat money laundering or terrorist financing ( 61 ). In cooperation with Member States, an updated questionnaire collected data on the judicial phases of the national anti-money laundering regimes. Figure 24 shows the average length of first instance court cases dealing with money laundering criminal offences.
Figure 24: Money laundering: Average length of court cases (*) (1st instance/in days) (source: European Commission with the Expert Group on Money Laundering and Financing of Terrorism)
(*) ES: estimated length. LV: Due to a relatively low number of cases in 2016, there are various factors possibly impacting the length of proceeding, e.g. a stay in a single case for objective reasons. PL: Calculation of length for 2016 based on a randomly selected sample of cases.
3.1.4. Summary on the efficiency of justice systems
An efficient justice system manages its caseload and backlog of cases, and delivers rulings without undue delay. The main parameters used by the EU Justice Scoreboard to examine the efficiency of justice systems are therefore the length of proceedings (estimated or average time in days needed to resolve a case), the clearance rate (the ratio of the number of resolved cases over the number of incoming cases) and the number of pending cases (that remains to be dealt with at the end of the year).
General data on efficiency
The 2018 EU Justice Scoreboard contains data on efficiency covering seven years (2010-2016). This amount of time allows certain trends to be identified. This is particularly relevant considering that justice reforms often take time to show their effect.
Looking at the general data in civil, commercial and administrative cases, the Scoreboard shows that over the seven year period an overall positive trend on efficiency prevails. According to the data available since 2010, efficiency has improved or remained stable in almost all Member States with very few exceptions.
In particular, it is encouraging to observe the positive developments in the Member States which have been identified in the context of the European Semester or economic adjustment programme as facing challenges ( 62 ):
·Since 2010, in nearly all of these Member States, the length of first instance court proceedings in the broad ‘all cases’ category (Figure 7) and the litigious civil and commercial cases (Figure 8) has decreased or remained stable. In administrative cases (Figure 10), the length of proceedings since 2010 decreased or remained stable in most of these Member States. However, few Member States facing the most substantial challenges in 2016 showed an increase in the length of proceedings.
·For the first time, the Scoreboard presents data on the length of proceedings in all court instances for the litigious civil and commercial (Figure 9) and administrative cases (Figure 11). Data show that the Member States identified as facing challenges with the length of proceedings in first instance courts have similar issues at higher instance courts. Further, the average length of proceedings in higher instance courts is generally longer than in first instance courts in the majority of Member States where data are available.
·In the broad ‘all cases’ and the litigious civil and commercial cases categories (Figures 12 and 13), the overall number of Member States where the clearance rate is less than 100 % has decreased since 2010. In 2016, nearly all Member States, including those facing challenges, reported a high clearance rate (more than 97 %), which means that courts are generally able to deal with the incoming cases in these categories. In administrative cases (Figure 14), a larger variation of the clearance rate can be observed from one year to another and overall it remains lower than in other categories of cases.
·Since 2010, progress is clear in all Member States facing the most substantial challenges with their backlog, regardless of the category of cases. Most improvement in reducing pending cases has been made for litigious civil and commercial cases (Figure 16) and administrative cases (Figure 17). Despite these improvements, the difference between the Member States with few pending cases and those with a high number of pending cases remains very important.
Efficiency in specific areas of EU law
Data on the average length of proceedings in specific areas (Figures 18-24) provide an insight into the functioning of justice systems in types of business-related disputes covered by EU law. For citizens or businesses, effective enforcement can involve a chain of actors, not only courts but also administrative authorities. The Scoreboard presents data on this enforcement chain in the area of consumer law (Figures 21 and 22).
Data on efficiency in specific areas of law are collected on the basis of narrowly defined scenarios and the number of relevant cases may be low. However, as compared to the calculated length of proceedings presented in the general data on efficiency, these figures provide for an actual average length of all relevant cases in a year. It is therefore worth noting that several Member States which do not appear as facing challenges on the basis of general data on efficiency report significantly longer average length of cases in specific areas of law. At the same time, the length of proceedings in different specific areas may also vary considerably in the same Member State.
The figures in specific areas of EU law confirm that:
·For competition cases (Figure 18), more than one third of Member States (11) report first instance cases lasting more than three years. An explanation could be that these cases are low in number and generally very complex, often requiring additional and specific procedural steps. A similar tendency can be observed in the area of electronic communications (Figure 19) where cases take on average longer than in the broad category of administrative cases as well as in other specific areas of law, for example, in consumer law (Figure 21).
·The possible combined effect of the enforcement chain consisting of both administrative and judicial review proceedings is presented in the area of consumer law (Figures 21 and 22). In only a quarter of Member States, a consumer protection authority takes a decision in a case covered by EU consumer law in less than three months on average. Other Member States report an average length of three months to more than a year. Some consumer protection authorities' deal with a substantial number of cases and the majority of their decisions are not challenged in courts. However, where a judicial review of an administrative decision takes place, it would on average take more than one year in the majority of Member States. The cumulative effect of both administrative and judicial proceedings may therefore be very substantial, in particular for a consumer seeking redress.
·Data on the length of interim measures to prevent imminent infringements or damages in the areas of electronic communication and intellectual property rights is also presented (Figure 23). It shows high variety across the Member States, as well as per type of case in the same country. The number of cases where a decision on a provisional measure was adopted is significantly lower than the number of main proceedings in those areas of law.
·The effective fight against money laundering is crucial in protecting the financial system, fair competition and preventing negative economic consequences. In view of complying with the obligations stemming from the anti-money laundering Directive as of June 2017, Member States improved their capacity to collect data on the judicial phases of the national anti-money laundering regime. The 2018 EU Justice Scoreboard presents updated data on the length of judicial proceedings dealing with money laundering offences (Figure 24), which show that while in about a half of Member States the first instance court proceedings take up to a year on average, these proceedings take around two years on average in several Member States facing challenges.
3.2. Quality of justice systems
There is no single way of measuring the quality of justice systems. The 2018 EU Justice Scoreboard continues examining factors that are generally accepted as relevant to improve the quality of justice. They are grouped into four categories:
1) accessibility of justice for citizens and businesses;
2) adequate material and human resources;
3) putting in place assessment tools; and
4) using quality standards.
Accessibility is required throughout the whole justice chain to enable obtaining relevant information — about the justice system, how to initiate a claim and the related financial aspects, the state of play of proceedings up until their end — so that the judgment can be swiftly accessed online ( 63 ).
– Giving information about the justice system –
Citizen-friendly justice requires that information about the judicial system is provided in a way that is not only easily accessible but also presents the information in a tailor-made form for specific groups of society who would otherwise have difficulties in accessing the information. Figure 25 shows the availability of online information about specific aspects of the judicial system and for specific groups of society.
Figure 25: Availability of online information about the judicial system for the general public(*) (source: European Commission ( 64 ))
(*) DE: Each federal state and the federal level decide which information to provide online.
– Legal aid and court fees –
Access to legal aid is a fundamental right enshrined in the Charter ( 65 ). Most Member States grant legal aid on the basis of the applicant’s income ( 66 ). In order to collect comparable data, two scenarios involving a consumer dispute have been set out in the context of each Member State’s income and living conditions. Figure 26 shows the availability of legal aid for these two scenarios, which are based on two different values of the claim: (i) a high value claim (i.e. EUR 6 000) and (ii) a low value claim (i.e. each Member State’s respective Eurostat poverty threshold converted to monthly income) ( 67 ).
Figure 26 compares in percentage the income thresholds for granting legal aid with the Eurostat poverty threshold in each Member State. For example, if eligibility for legal aid appears at 20 %, it means that an applicant with an income 20 % higher than the respective Eurostat poverty threshold can receive legal aid. On the contrary, if eligibility for legal aid appears at -20 %, it means that the income threshold for legal aid is 20 % lower than the Eurostat poverty threshold. Some Member States operate a legal aid system that provides for 100 % coverage of the costs linked to litigation (full legal aid), complemented by a system covering partial costs (partial legal aid). Other Member States operate either only a full or only a partial legal aid system.
Figure 26: Income threshold for legal aid in a specific consumer case (*) (differences in % from Eurostat poverty threshold) (source: European Commission with the CCBE ( 68 ))
(*)‘Low value claim’ is a claim corresponding to the Eurostat poverty threshold for a single person in each Member State, converted to monthly income (e.g. in 2015, this value ranged between €116 in RO and €1 764 in LU). The figure presents thresholds for legal aid ranging from 40 % to -30 %. DK, DE, EE, ES, FR, HR, LT, NL, FI, and SE grant legal aid at an income threshold which ranges between 40 % and 357 %. HU: legal aid is granted at an income threshold of -41 %. BG: the legal aid threshold is at the poverty threshold level. IE and SK: no legal aid is available for a value of the claim at the respective AROP threshold as the amount is too small. DE: the income threshold is based on the Prozesskostenhilfebekanntmachung 2017 and average annual housing costs (SILC). LV: a range of income between €128.06 and €320 depending on the place of residence of the applicant. The rate is based on the arithmetic mean. ** EE: full legal aid is granted on court’s discretion. MT: Data refers to 2016.
Most Member States require parties to pay a court fee when starting a judicial proceeding. Recipients of legal aid are often exempt from paying court fees. Only BE, EE, IE, NL and SI require a recipient of legal aid to pay a court fee. In CZ the court decides on an individual basis to exempt a legal aid recipient from paying court fees. Figure 27 compares for the two scenarios the level of the court fee presented as a share of the value of the claim. If, for example, in the figure below the court fee appears at 10 % of a EUR 6 000 claim, the consumer will have to pay a EUR 600 court fee to start a judicial proceeding. The low value claim is based on the Eurostat poverty threshold for each Member State.
Figure 27: Court fee to start a judicial proceeding in a specific consumer case (*) (level of court fee as a share of the value of the claim) (source: European Commission with the CCBE( 69 ))
– Submitting and following a claim online –
The ability to complete specific steps in the judicial procedure by electronic means is an important part of the quality of justice systems because the electronic submission of claims, the possibility to monitor and advance a proceeding online can ease access to justice and reduce delays and costs. ICT systems in courts also play an increasing role in cross-border cooperation between judicial authorities and also facilitate the implementation of EU legislation, for example, on small claims procedures. One of the Commission’s policy goals is to simplify and speed up small claims procedures by improving the communication between judicial authorities and by making smart use of ICT.
Figure 28: Availability of electronic means (*) (0 = available in 0 % of courts, 4 = available in 100 % of courts ( 70 )) (source: CEPEJ study)
(*) DK and RO: cases may be submitted to courts by email.
Figure 29: Benchmarking of small claims procedures online (*) (source: 15th eGovernment Benchmark report, study prepared for the European Commission, Directorate-General Communications Networks, Content & Technology ( 71 ))
(*) Member States only received 100 points per category if the service was fully available through a central portal.
– Exchanges between courts and lawyers –
The frequency of using various ICT tools in exchanges between courts and lawyers and the underlying reasons for using or not using differ significantly between Member States ( 72 ). Figures 30 and 31 present the results of a survey of lawyers conducted in 2017 on the actual use of ICT.
Figure 30: Use of ICT between courts and lawyers (*) (source: CCBE survey)
(*) Data for DK, NL, MT and LU from 2016. Submissions to court covers: ’electronic submission of a claim’, ‘electronic submission of summons to appear in court’ and ‘electronic submission of evidence/supporting documents’.
(**) Submissions to court covers the following answer options:’ electronic submission of a claim’, ‘electronic submission of summons to appear in court’, ‘electronic submission of evidence/supporting documents’.
Figure 31: Reasons for the (non-)use of ICT between courts and lawyers (source: CCBE survey)
(*) Data for DK, NL, LU and MT from 2016.
– Use of social media and communicating with the media –
For the general public, social media and media in general serve as a channel that contributes to the accessibility of justice systems and judicial work.
Figure 32: Use of social media and guidelines for relations with the press/media (*) (source: European Commission ( 73 ))
(*) For each of the three instances two points can be given if civil/commercial cases and administrative cases are covered. If only one of the two categories of cases is covered only one point is given. Maximum possible: 7 points. DE: each federal state has own guidelines for using social media.
– Accessing judgments –
Ensuring access to judgments online increases the transparency of justice systems, helps citizens and businesses understand their rights and can contribute to consistency in case-law. The arrangements for online publication of judgments are essential for creating user-friendly search facilities ( 74 ), that make case-law more accessible to legal professionals and the general public.
Figure 33: Access to published judgments online to the general public (*) (civil/commercial and administrative cases, all instances) (source: European Commission ( 75 ))
(*) For each court instance, one point was given if all judgments are available for civil/commercial and administrative cases respectively (0.5 points when some judgments are available). For Member States with only two court instances, points have been given for three court instances by mirroring the respective higher instance court of the non-existing instance. For those Member States that do not distinguish between the two areas of law, the same number of points has been given for both areas. Maximum possible: 6 points. LU und SE: courts do not publish judgments regularly online (only landmark cases). LV: For judgment adopted in non -public hearings, only the publicly announced parts are published online. DE: each federal state decides on online availability of 1st instance court judgments.
Figure 34: Arrangements for online publication of judgments in all instances (*) (civil/commercial and administrative cases, all instances) (source: European Commission ( 76 ))
(*) For each of the three instances, two points can be given if civil/commercial cases and administrative cases are covered. If only one of the two categories of cases is covered only one point per instance is given. Maximum possible: 30 points. NL: no keywords, but a table of contents is added to every published judgment. LV: All judgments adopted after end September 2017 are assigned an ECLI.
– Accessing alternative dispute resolution methods –
Figure 35 shows Member States’ efforts in promoting the voluntary use of alternative dispute resolution methods through specific incentives, which may vary depending on the area of law ( 77 ). Figure 36 shows the number of consumer complaints submitted through the European online dispute resolution (ODR) platform ( 78 ), revealing a high increase in its use. Visiting the ODR platform also helps consumers access ADR bodies, as the platform — in addition to providing information on consumer rights, available ADR bodies and alternative options to find redress — transmits the dispute to the ADR body that the parties have selected.
Figure 35: Promotion of and incentives for using ADR methods (*) (source: European Commission ( 79 ))
(*) Aggregated data based on the following indicators: 1) website providing information on ADR, 2) publicity campaigns in media, 3) brochures to the general public, 4) court provides specific information sessions on ADR upon request, 5) ADR/mediation coordinator at courts, 6) publication of evaluations on the use of ADR, 7) publication of statistics on the use of ADR, 8) legal aid covers costs (in part or in full) incurred with ADR, 9) full or partial refund of court fees (including stamp duties), 11) if ADR is successful, no lawyer for ADR procedure required, 12) judge can act as mediator, and 13) agreement reached by the parties becomes enforceable in court. For each of these 13 indicators, one point was given for each area of law. Maximum possible: 39 points. DK: Each court has an ambassador responsible for promoting the use of mediation. ES: ADR is mandatory in labour law cases. LT: a secretary at the National Courts Administration coordinates the judicial mediation processes in courts. PT: for civil/commercial disputes, court fees are refunded only in case of justices for peace. SE: judges have procedural discretion on ADR; seeking friendly settlements is a mandatory task for the judge unless it’s inappropriate.
Figure 36: Number of consumer complaints to ODR platform per 100 000 inhabitants, 2016 and 2017 (*) (source: ODR platform — extracted 05/01/2018)
Adequate resources and well-qualified staff are necessary for the good functioning of the justice system. Without a sufficient number of staff with the required qualifications, skills and access to continuous training, the quality of proceedings and decisions are at stake.
– Financial resources –
The figures below show the budget actually spent on courts, first by inhabitant (Figure 37) and second as a share of gross domestic product (GDP) (Figure 38) ( 80 ).
Figure 37: General government total expenditure on law courts (*) (in EUR per inhabitant) (source: Eurostat)
(*) 2016 data for ES, FR, NL, and SK are provisional.
Figure 38: General government total expenditure on law courts (*) (as a percentage of GDP) (source: Eurostat)
(*) 2016 data for ES, FR, NL, and SK are provisional.
Figure 39 shows which state power (judiciary, legislature or executive) sets the criteria on determining financial resources for the judiciary, and the type of criteria used.
Figure 39: Criteria for determining financial resources for the judiciary (*) ( 81 )
(*) DK: number of incoming and resolved cases at courts of 1st instance courts are taken into account. DE: only for the Supreme Federal Court’s budget — as regards courts of 1st and 2nd instance. Judicial systems vary between the federal states. EE: number of incoming and resolved cases for courts of 1st and 2nd instance courts. FR: number of incoming and resolved cases for courts of all instances. IT: the Ministry of Justice defines criteria for civil and criminal courts, while the Council for the Judiciary (CPGA) defines criteria for administrative courts. HU: law states that the salaries of judges must be determined in the act on the central budget in such a way that the amount must not be lower than it had been in the previous year. NL: the number of resolved cases based on an evaluation of the costs for courts is taken into account.
– Human resources –
Adequate human resources are essential for the quality of a justice system. Diversity among judges, including gender balance, adds complementary knowledge, skills and experience and reflects the reality of society.
Figure 40: Number of judges (*) (per 100 000 inhabitants) (source: CEPEJ study)
(*) This category consists of judges working full-time, under the CEPEJ methodology. It does not include the Rechtspfleger/court clerks that exist in some Member States. EL: the total number of professional judges includes different categories over the years shown above, which partly explains their variation. UK: weighted average of the three jurisdictions. Data for 2010 contains 2012 data for UK (NI). LU: numbers have been revised following an improved methodology.
Figure 41: Proportion of female professional judges at 1st and 2nd instance courts in 2016 (source: CEPEJ study)
Figure 42: Proportion of female professional judges at Supreme Courts in 2017 (*) (source: European Commission ( 82 ))
Figure 43: Number of lawyers (*) (per 100 000 inhabitants) (source: CEPEJ study)
(*) Under CEPEJ methodology a lawyer is a person qualified and authorised according to national law to plead and act on behalf of his or her clients, to engage in the practice of law, to appear before the courts or advise and represent his or her clients in legal matters (Recommendation Rec (2000)21 of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer).
– Training –
Judicial training is important in contributing to the quality of judicial decisions and the justice service delivered to citizens. The data set out below cover judicial training in a broad range of areas, including communication with parties and the press and on judicial skills. Most Member States continue with the same type of compulsory training for judges as last year with the exception of ES, CY, HU and PT which have extended the scope of the training and EL that has reduced it.
Figure 44Error! No sequence specified.: Judges participating in continuous training activities in EU law or in the law of another Member State (*) (as a percentage of total number of judges) (source: European Commission ( 83 ))
Figure 45: Share of continuous training of judges on various types of skills (*) (as a percentage of total number of judges receiving these types of training) (source: European Commission ( 84 ))
Figure 46: Availability of training for judges on communication with parties and the press (*) (source: European Commission ( 85 ))
(*) DK: no training is offered on communicating with people who are visually or hearing impaired because the state offers a visually or hearing impaired people support in form of tools or an assistant in the courtroom, e.g. a deaf interpreter.
3.2.3. Assessment tools
Monitoring and evaluation of court activities help to detect shortcomings and needs, and therefore help the justice system increase its quality. Regular evaluation could improve the justice system’s responsiveness to current and future challenges. Adequate ICT tools could provide real-time case management systems and could help to provide nationwide standardised court statistics. In addition, they could be used for the management of backlogs and automated early-warning systems. Surveys are essential to assess how justice systems operate from the perspective of legal professionals and court users. An adequate follow-up of surveys is a prerequisite to improve the quality of justice systems.
Figure 47: Availability of monitoring and evaluation of court activities (*) (source: CEPEJ study ( 86 ))
(*) The evaluation system refers to the performance of court systems, using indicators and targets. In 2016, all Member States reported having a system that allows them to monitor the number of incoming cases and delivered decisions, as well as the length of proceedings making these categories superfluous for the above figure. Similarly, the more in-depth work on quality standards has superseded their use as an evaluation category. Data on ‘other elements’ include e.g. clearance rate (AT, FR), number of appealed cases and enforcement procedures (ES), outcome of the case, e.g. full or partial satisfaction (SK), final convictions (RO) and number of court sessions (PL).
Figure 48: Availability of ICT for case management and court activity statistics
(0 = available in 0 % of courts, 4 = available in 100 % of courts ( 87 )) (source: CEPEJ study)
Figure 49: Topics of surveys conducted among court users or legal professionals (*) (source: European Commission ( 88 ))
(*) Member States were given one point per survey topic indicated regardless of whether the survey was conducted at national, regional or court level. ‘Other topics’ include: adequacy of premises as regards victims’ rights and disabled persons (MT). Availability of court information online (DK). The right to be heard, instructions on legal remedies (DE). This category also covers surveys among court staff, e.g. on court organisation (IE), human resources (IE, MT), integrity of judges (HU), workload (MT). Property profile of the judiciary (AT), career structure and training options (DE). The topic ‘awareness of rights’ was not included in surveys in any Member State in the respective period. BE carried out a survey in 2014.
Figure 50: Follow-up of surveys conducted among court users or legal professionals (*) (source: European Commission ( 89 ))
(*) Member States were given one point per type of follow-up. The category ‘other specific follow-up’ included: feeding into the courts service’s online services strategy (IE), informing deliberations of the Probate Services Review Group (IE), evaluating the use of an online portal concerning tax and administrative courts (PT), editing existing website (DK).
Standards can drive up the quality of justice systems. Following the examination of standards on timing and information to parties in the previous edition, the 2018 EU Justice Scoreboard focuses on timeframes and backlogs as a management tool in the judiciary ( 90 ). Figure 51 presents an overview of which Member States use the standards on time limits, timeframes and backlogs. Time limits are quantitative deadlines, e.g. maximum number of days between the registration of a case until the first hearing. Timeframes are measurable targets/practices e.g. specifying a pre-defined share of cases to be completed within a certain time period. Standards on backlogs covered in Figure 51 mean whether a definition exists on when a pending case is considered to be a backlog. Figure 52 presents which bodies set, monitor and follow-up on timeframe standards and Figure 53 shows in more detail certain aspects on setting, monitoring and follow-up of backlogs.
Figure 51: Standards on timing (*) (source: European Commission ( 91 ))
(*) Member States were given 1 point if standards are defined, regardless of the area (civil/commercial, administrative, or other).
Figure 52 focuses on timeframes, which can be an effective management tool in the judiciary, since they can help to detect potential issues on efficiency and assist in identifying solutions (e.g. additional human or financial resources, reorganisation of court management process, temporary assistance to a court). The figure shows the competences of the different powers of the state to set, monitor and follow-up standards on timeframes.
Figure 52: Setting and monitoring of standards on timeframes (*) (source: European Commission ( 92 ))
(*) Member States are presented according to the order in Figure 52. Setting standards ‘by the parliament’ indicates that a certain standard is set only in law. The ‘executive’ encompasses institutions under direct or indirect control by the government. ‘Other’ refers to the National Office for the Judiciary in HU, headed by its president elected by qualified majority of the Parliament from among judges for a period of nine years. The ‘judiciary’ includes bodies such as court presidents, Councils for the Judiciary, judges’ bodies. BE: Based on legislation of 2014, standards on timeframes are expected to become effective in 2019. FR: The Council of State (Conseil d’Etat) monitors the respect of standards on timeframes concerning administrative cases. HU: The National Office for the Judiciary is involved in setting, monitoring and follow-up of standards on timeframes.
Figure 53: Backlogs: definition, automatic monitoring and follow-up (*) (source: European Commission ( 93 ))
– Information to parties –
Figure 54 presents standards on the way parties are informed and the type of information they receive about the progress of their case. Certain Member States have an automated e-mail or SMS notification system providing information about delays, timetables or general case progress. Others simply give online access to the information during the case, while some leave it at the discretion of the courts.
Figure 54: Standards on information about case progress (*) (source: European Commission ( 94 ))
Easy access, adequate resources, effective assessment tools and appropriate standards are the factors that contribute to a high quality of justice systems. High quality decisions are what citizens and business are expecting from an effective justice system. The 2018 EU Justice Scoreboard develops its comparative examination of these factors.
This edition looks at elements contributing to a citizen-friendly justice system:
·Almost all Member States provide some online information about their judicial system, including a centralised web portal with online forms and education on legal rights (Figure 25). Differences appear on the content of the information and how adequate these are with people’s needs. For example, only eight Member States provide an interactive online tool enabling people to find out whether they are eligible for legal aid. While information for non-native speakers is available in the majority of Member States, less than half provide information targeted specifically to children and for visually or hearing impaired people.
·The availability of legal aid and the level of court fees have a major impact on access to justice, in particular for people in poverty. Figure 26 shows that in some Member States, consumers whose income is below the Eurostat poverty threshold would not receive legal aid. Over the years, legal aid has become less accessible in some Member States as the income threshold for legal aid remained unchanged while the poverty level has gone up. The level of court fees (Figure 27) remained largely stable since 2016. However, the difficulty in benefiting from legal aid in combination with partly significant levels of court fees in some Member States could have a dissuasive effect for people in poverty to access justice.
·The availability of electronic means during the judicial procedure contributes to easier access to justice and the reduction of delays and costs. Figure 28 shows that in more than half of Member States electronic submission of claims is not in place or is possible only to a limited extent and that not all Member States allow following the progress of court proceedings online.
However, on the quality of online small claims procedures a considerable set of tools is available in the majority of Member States (Figure 29). A survey on the actual use of ICT between courts and lawyers shows that ICT tools are widely used in 12 out of the 22 Member States covered by the survey (Figure 30). They are most frequently used for general communication with courts, while signatures of documents and submissions of claims, summons and evidence are less frequently done by electronic means. In comparison to last year’s survey, a higher number of lawyers reported that the use of ICT is compulsory in their country. Overall, the reported level of positive experience has decreased while the reported lack of trust increased.
·Compared to previous years, online access to court judgments has improved in a number of Member States (Figure 33). There is, however, scope for improvement, since only 16 Member States publish all civil/commercial and administrative judgments of the highest instance, while these decisions play an important role for the consistency of case-law. As various arrangements for online publication (Figure 34) could facilitate searches for relevant case-law, tagging judgments with keywords and greater use of the European Case-Law Identifier (ECLI) could be further developed.
·Most Member States continued to promote the voluntary use of alternative dispute resolution methods (ADR) (Figure 35) methods for private disputes compared to previous years. This is mainly achieved by introducing more incentives for the use of ADR across different areas of law. In consumer law, a clear increase in the use of the recently established online dispute resolution (ODR) platform is visible in all Member States (Figure 36).
·A new indicator (Figure 32) shows that courts at all instances use social media to communicate about their work in one third of Member States, while in other Member States social media are used only in some court instances or not at all.
High quality justice systems in Member States require adequate levels of financial and human resources, appropriate initial and continuous training as well as diversity among judges, including gender balance. The 2018 EU Justice Scoreboard shows the following:
·In terms of financial resources, data show that, overall, general government expenditure on the judicial system remained stable in most Member States in 2016 while significant differences in allocated amounts persist (Figures 37 and 38). Only one Member State facing particular challenges decreased expenditure, whereas a number of Member States increased their budget. Member States mostly use historical or actual cost for determining financial resources for the judiciary instead of relying more on the actual workload or court requests (Figure 39).
·The level of gender balance among judges in first and/or second instance courts overall continues to be adequate (Figure 41). The proportion of women is generally much lower in Supreme Courts compared to lower court instances (Figure 42), but it has increased in about a third of Member States compared to previous years.
·On the training of judges, while most Member States provide continuous training in EU law, the law of another Member State and on judgecraft fewer offer training on IT skills, court management and judicial ethics (Figures 45 and 46). Training on communicating with parties is offered in most Member States (Figure 46). Efforts need to be intensified, however, to train judges in communicating with specific groups of parties (including visually or hearing impaired people) in dealing with gender-sensitive practices in judicial proceedings, and on the role of interpreters.
·Monitoring and evaluation of court activities (Figure 48) exists in all Member States. It generally includes different performance and quality indicators and regular reporting. Almost all Member States monitor the number and length of court cases and have regular evaluation systems. Compared to previous years, several Member States have extended monitoring to more specific elements and some involved more specialised court staff for quality.
·The full potential of ICT case management systems still needs to be reached in many Member States (Figure 48). Such a system should serve various purposes, including generating statistics, and be implemented consistently across the whole justice system. For example, in some Member States, ICT tools do not deal with the management of backlogs, including the identification of particularly old cases. By contrast, certain Member States have early-warning systems to detect malfunctions or non-compliance with case processing standards, which enables the finding of timely solutions. In some Member States, it is still not possible to ensure nationwide data collection across all justice areas.
·The use of surveys among court users and legal professionals (Figure 49) has increased, with more than half of Member States conducting surveys and expanding the range of topics in 2016. Accessibility, customer service, court hearing and judgment, as well as general trust in the justice system remained key survey topics. A few Member States also inquired about the satisfaction of groups with special needs, notably visually impaired, children and non-native speakers. Almost all Member States who used surveys also ensured follow-up (Figure 50), while the extent of the follow up continued to vary greatly. Results generally were made puplic and fed into reports, while in half of the Member States the survey results led to changes in the functioning of courts.
Standards can drive up the quality of justice systems. This edition continues to examine in more detail certain standards aiming to improve the timing of proceedings and the information provided to the parties.
·Most Member States use standards on timing. However, certain Member States facing particular challenges on efficiency are currently not using such standards. Standards fixing time limits (e.g. fixed time from the registration of a case until the first hearing) are most widespread, while those on timeframes (e.g. specifying a pre-defined share of cases to be completed within a certain time) and backlogs are used less (Figure 51).
·This edition examines how far the judiciary is responsible or fully involved in establishing and monitoring standards to avoid undue interference by the executive. It shows that timeframes (Figure 52) are mostly set soley by the judiciary or in cooperation with the executive. The monitoring of timeframes is mainly under the responsibility of the judiciary. The non-compliance with timeframes can trigger various types of follow-up, either by the judiciary or, quite often by the judiciary and the executive.
·Standards on backlogs (Figure 53) are a useful tool that can contribute to better case management and improved efficiency. Most Member States have standards on backlogs, but their scope varies considerably. While most Member States have procedures to address backlogs through a range of measures, only half of the Member States have a substantive definition on when a pending case is considered a backlog. About a third of Member States have systems for tracking backlogs, which automatically sends alerts on pending cases of a certain age or once backlogs reach a certain percentage of all cases.
·Most Member States have standards on how to inform the parties about the progress of their case, the court timetable or potential delays (Figure 54). Compared to last year, a few Member States improved these standards. The differences between Member States relate mainly to the methods used. Certain Member States have a system with automated e-Mail or SMS notification providing information about delays, timetables or general case progress. Others simply give online access to the information during the case, while some also leave it at the discretion of the courts. From the point of view of people accessing justice, automated information from the court is preferable to one that requires action from the parties.
To be noted that the Association of the Councils of State and Supreme Administrative jurisdictions (ACA) has published a transversal study on ‘ Access to administrative supreme courts and to their decisions ’: http://www.juradmin.eu/images/media_kit/aca_surveys/Transversal-Analysis---Annex-1.pdf
Data concern 2016. Equipment rate from 100 % (device completely deployed) to 0 % (device non-existing) indicates the functional presence in courts of the device covered by the graph, according to the following scale: (100 % = 4 points if applicable to all matters / 1.33 points per specific matter; 50-99 % = 3 points if applicable to all matters / 1 point per specific matter; 10-49 % = 2 points if applicable to all matters / 0.66 point per specific matter; 1-9 % = 1 point if applicable to all matters / 0.33 points per specific matter. Matter relates to the type of litigation handled (civil/commercial, criminal, administrative or other).
COM(2018) 364 final
COMMUNICATION FROM THE COMMISSION
The 2018 EU Justice Scoreboard
Judicial independence is a requirement stemming from the principle of effective judicial protection referred to in Article 19 TEU, and from the right to an effective remedy before a tribunal enshrined in the Charter of Fundamental Rights of the EU (Article 47) ( 1 ). It guarantees the fairness, predictability and certainty of the legal system, which are important elements for an attractive investment environment. In addition to indicators on perceived judicial independence from various sources, the Scoreboard presents a number of indicators on how justice systems are organised to protect judicial independence in certain types of situations where independence could be at risk. Having continued its cooperation with European judicial networks, particularly the European Network of Councils for the Judiciary (ENCJ), the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC) and the Association of the Councils of State and Supreme Administrative Jurisdictions of the EU (ACA-Europe), the 2018 EU Justice Scoreboard shows new or updated figures on the appointment and dismissal of judges, court presidents and judges-members of the Councils for the Judiciary, as well as on the organisation of the prosecution services, and powers and the judicial activity of the highest national courts in situations relating to judges.
3.3.1. Perceived judicial independence
Figure 55: Perceived independence of courts and judges among the general public (source: Eurobarometer ( 2 ) — light colours: 2016 and 2017, dark colours: 2018)
Figure 56 shows the main reasons given by respondents for the perceived lack of independence of courts and judges. Respondents among the general public, who rated the independence of the justice system as being ‘fairly bad’ or ‘very bad’, could choose between three reasons to explain their rating. The Member States are listed in the same order as in Figure 55.
Figure 56: Main reasons among the general public for the perceived lack of independence (share of all respondents — higher value means more influence) (source: Eurobarometer ( 3 ))
Figure 57: Perceived independence of courts and judges among companies (source: Eurobarometer ( 4 ) — light colours: 2016 and 2017, dark colours: 2018)
Figure 58 shows the main reasons given by respondents for the perceived lack of independence of courts and judges. Respondents among companies, who rated the independence of the justice system as being ‘fairly bad’ or ‘very bad’, could choose between three reasons to explain their rating. The Member States are listed in the same order as in Figure 57.
Figure 58: Main reasons among companies for the perceived lack of independence (rate of all respondents — higher value means more influence) (source: Eurobarometer ( 5 ))
Figure 59: Businesses’ perception of judicial independence (perception — higher value means better perception) (source: World Economic Forum ( 6 ))
Figure 60: Judges’ perception of judicial independence in 2017 (perception — higher value means better perception) (source: European Network of Councils for the Judiciary ( 7 ))
3.3.2. Structural independence
The guarantees of structural independence require rules, including those on the appointment of judges ( 8 ). In certain types of situations, where independence may be at risk, European standards have been developed, particularly by the Council of Europe, for example in the 2010 Council of Europe Recommendation on judges: independence, efficiency and responsibilities (‘the 2010 Recommendation’) ( 9 ). The Scoreboard presents a number of indicators on how justice systems are organised to safeguard judicial independence in these types of situations.
This edition includes additional indicators related to the level of involvement of the executive and the parliament in the appointment and dismissal of judges (Figures 61-64), the appointment and dismissal of court presidents (Figure 65), and the appointment of judges-members of the Councils for the Judiciary (Figure 66) ( 10 ). For the first time, the EU Justice Scoreboard provides an overview of how prosecution services are organised in the Member States (Figure 67) ( 11 ), and the powers and judicial activity of the highest courts in situations relating to judges (Figure 68) ( 12 ). The figures present the national frameworks as they were in place in December 2017.
The figures presented in the Scoreboard do not provide an assessment or present quantitative data on the effectiveness of the safeguards. They are not intended to reflect the complexity and details of the safeguards. Having more safeguards does not, in itself, ensure the effectiveness of a justice system. It should also be noted that implementing policies and practices to promote integrity and prevent corruption within the judiciary is also essential to guarantee judicial independence. Ultimately, the effective protection of judicial independence requires a culture of integrity and impartiality, shared by magistrates and respected by the wider society.
– Safeguards relating to the appointment and dismissal of judges and court presidents –
Figure 61 presents an updated overview of the bodies and authorities which propose judges for their first appointment at first instance courts and the authorities that appoint them. It also shows whether the recruitment of judges is done through a specific exam or a competition for judges, or through a vacancy notice without a specific exam.
Figure 61: Appointment of judges: proposing and appointing authorities (*) ( 13 )
(*) In several countries other authorities or bodies (e.g. court presidents, judges) may or should deliberate or be consulted on the candidate judges (e.g. in BE, CZ, DE, EE, LT, HU, NL, AT, UK (EN+WL), and UK (SC)). In some countries (e.g. LT and PL) certain candidates are exempt from taking the special exam for judges because of their previous qualifications or experience. CZ: the president formally appoints judges, the Minister of Justice decides on the assignment of a judge to the particular court. In practice, the candidate judges for appointment are nominated by presidents of regional courts. Afterwards, the list of candidates is forwarded to the Ministry of Justice that forwards the list of candidates (after considering all circumstances) to the Head of State. DE: proceedings at the level of the federal states differ greatly. In half of the 16 federal states, judicial electoral committees participate in the recruitment. In some of the federal states, this matter is dealt with completely by their state Ministry of Justice, whereas in other federal states the authority to decide on recruitment and on the (first) appointment has been transferred to the presidents of the higher regional courts. Some federal states provide for mandatory participation of a council of judges. Others require a joint appointment by the competent minister and a conciliation committee if the council of judges objects. In some federal states, judges are elected by the state parliaments and have to be appointed by the state executive. IE: the Judicial Appointments Advisory Board recommends at least seven candidates to the government for appointment. Following the government’s decision, the president formally appoints the judge and cannot refuse to appoint the proposed candidate. FR: candidate judges are selected through a specific exam for becoming a judge and are ranked according to their results. Following a discussion between the candidate and the Ministry of Justice on assignment to a particular court, the Conseil Supérieur de la Magistrature must issue an opinion on the first appointment of these candidates and the Minister of justice then forwards the list of candidates to the President of the Republic, who must formally appoint the candidate judges through a decree without having discretion on the matter. LV: after three years, the Judicial Qualification Board, composed of and elected by judges, provides an opinion in the evaluation of the professional work of a judge. NL: The decision to propose a judge for appointment is formally made by a court president, relying on the recommendation by the Independent Selection Committee. RO: The figure relates to the appointment of senior judges. UK (EN+WL): Different procedures apply for the first appointment of the senior judiciary (High Court Judges and above), which are presented above, and for the appointment of the junior judiciary (Circuit Judges and below).
Figure 62 presents the competence of the executive power (e.g. president of the republic, government) and the parliament in appointing judges for their first appointment at first instance courts upon submission from the proposing authorities (e.g. Council for the Judiciary, court) ( 14 ). The height of the column depends on whether the executive or the parliament can reject a candidate judge at all, whether it can choose only among the proposed candidates, or whether it can choose and appoint any other candidate, even they are not proposed by the competent authority. An important safeguard in case of non-appointment is the obligation to provide reasons and the possibility for judicial review. The figure is a factual presentation of the legal system and does not make a qualitative assessment of the effectiveness of the safeguards. For example, it should be noted that in several Member States where the executive or the parliament has the power to reject a candidate judge, that power has either never been exercised (e.g. in HU, NL, AT, SK, SE, UK (EN+WL) and UK (SC)), or has been exercised in very few cases (e.g. in LV, SI and FI).
Figure 62: Appointment of judges: competence of the executive and the parliament (*) ( 15 )
(*) The figure presents the national frameworks as they were in place in December 2017. For each Member State, one point was given if the executive/parliament can reject a proposed candidate and choose another candidate among those proposed, one point was given if there is no obligation by the executive/parliament to state reasons for not appointing a candidate judge, two points were given if the executive can reject a candidate and choose any other candidate, and two points were given if there is no judicial review in case of non-appointment. With the exception of Member States, where first instance court judges are appointed by a Council for the Judiciary, and LV and SI where they are appointed by the parliament, in all other Member States in the figure the executive appoints first instance court judges. DE: No data. See explanations below Figure 61. IE: The Government may appoint a person who is not on the list sent by the Judicial Appointments Advisory Board but in practice does not do so. The final appointment is made by the President, who cannot refuse. The Government is not required to provide reasons to an unsuccessful candidate as to why it has not advised the President to appoint that candidate. There is no appeal/review procedure in relation to a decision by the Government not to recommend/advise the President to appoint a candidate. EL: The final appointment is made by the president, who cannot refuse. ES: The first instance court judges are proposed for appointment by the Council for the Judiciary and are formally appointed through a Royal Decree by the Head of State (the King). The Ministry of Presidency is responsible for drafting the Royal Decree and submitting it to the King and the Minister of Justice. The Minister of Justice must endorse the Royal Decree but neither the King nor the Minister have any power to object the decision of the Council for the Judiciary and must mandatorily sign the Royal Decree. LT: Without advice from the Judicial Council, the President cannot appoint a judge. If the Judicial Council gives positive advice to the president, the president is free to adopt the final decision. If the Judicial Council gives negative advice to the president, then the president must follow this advice when adopting the final decision. LU: There is no binding text on this issue, but until now, the appointing authority has never rejected a candidate judge proposed for appointment by the Commission du recrutement et de la formation des attaches de justice. AT: Under the Constitution, proposals of the courts for candidate judges are not binding. However, it is general practice to appoint only candidates proposed by the relevant courts. PL: The President's decision cannot be appealed to the Supreme Court. RO: The president can refuse the appointment of a senior judge or prosecutor only once. The reasoned refusal is sent to the Superior Council of Magistracy. SK: The president could possibly refuse to appoint a candidate judge but it has never happened. FI: if the president does not appoint the proposed candidate, he/she cannot choose another candidate but remit only once the appointment for further preparation. SE: If the government wants to appoint a candidate that the Judges Proposals Board did not submit, it is legally obliged seek a new opinion by the Board on that other candidate. UK(EN+WL) and UK(NI): the appointing authority referred is the Lord Chancellor (UK Minister of Justice), who recommends a candidate judge for formal appointment by the Queen. UK(SC): The appointing authority referred is the First Minister of Scotland, who recommends a candidate judge for formal appointment by the Queen. If the First Minister of Scotland were to reject a candidate judge, the proposing authority (Judicial Appointments Board for Scotland) may propose this candidate judge again to the First Minister. In a situation where an unsuccessful candidate considered that there were any procedural irregularities or that there was irrationality on the part of the panel in making its recommendation under section 19(3) of the Judiciary and Courts (Scotland) Act 2008 or on the part of the First Minister in deciding who to nominate under section 19(5), that person could raise a petition for judicial review in the Court of Session.
Figures 63 and 64 present frameworks regarding dismissal of judges. They do not show the situation of dismissal of judges due to forced retirement following the lowering of retirement age.
Figure 63: Dismissal of judges at courts of 1st and 2nd instance (*) ( 16 )
(*) The Member States appear in the alphabetical order of their geographical names in the original language. The height of the columns does not necessarily reflect the effectiveness of the safeguards. The numbers indicate how many judges were dismissed in 2016 by particular body and how many appealed dismissal (no number indicates no data available). "Proposal" also covers initiating disciplinary proceedings. In some countries, the executive has an obligation, either by law or practice, to follow the proposal of the Council for the Judiciary to dismiss a judge (e.g. ES and LT). UK (EN+WL): No full-time salaried judges were dismissed. Four part-time (fee-paid) court and tribunal judges were dismissed and also fifteen non-salaried lay magistrates.
Figure 64: Dismissal of judges: competence of the executive and the parliament (*) ( 17 )
(*) The Member States appear in the alphabetical order of their geographical names in the original language. The figure presents the national frameworks as they were in place in December 2017. EE: The figure reflects the competence of the Judges Disciplinary Committee to dismiss judges. The Supreme Court en banc (all judges) can also submit a proposal to the President to release a judge from office. The decision of the President is subject to judicial review. SI: The figure reflects the competence of the Disciplinary Court deciding on a disciplinary sanction, and the competence of the Council for the Judiciary to assess that a judge is ‘unsuitable for judicial service’. If a judge commits a criminal offence through the abuse of judicial office, the Council notifies the Parliament, which dismisses the judge. UK (EN+WL): In respect of the senior judiciary (High Court Judges and above), removal additionally requires an Address to be presented to Her Majesty the Queen by both Houses of Parliament on the recommendation of the Lord Chancellor and following an investigation by the Judicial Conduct Investigations Office. UK (NI): A judicial office holder (including tribunal presidents) may only be suspended/removed where a statutory tribunal has been convened in accordance with sections 7 and 8 of the Justice (Northern Ireland) Act 2002, as amended. The Prime Minister may suspend a Lord Justice of Appeal or High Court Judge, with the agreement of the Lord Chief Justice, where the Prime Minister and Lord Chancellor are considering the making of motions for the presentation of an address to Her Majesty The Queen. The remaining judicial office holders may be suspended by the Lord Chief Justice where a statutory tribunal so recommends.UK (SC): A judge of the Court of Session and the Chairman of the Scottish Land Court may only be removed from office by Her Majesty the Queen on recommendation by the First Minister of Scotland. The First Minister shall make such a recommendation if (and only if) the Scottish Parliament, on the motion by the First Minister, resolves that such a recommendation should be made and, where the person in question is the Lord President or the Lord Justice Clerk, the First Minister has consulted the Prime Minister.
Court presidents are judges and therefore part of the judiciary. In performing their tasks (which vary between Member States), court presidents protect the independence and impartiality of the court and of individual judges. According to the European standards, in particular the Consultative Council of European Judges (CCJE) Opinion No 19 (2016) on the role of court presidents, the procedures for the appointment of court presidents should follow the same path as that for the selection and appointment of judges. This includes a process of evaluation of the candidates and a body having the authority to select and/or appoint judges in accordance with the standards established in the 2010 Recommendation ( 18 ). The system of selection and appointment of court presidents should include, as a rule, a competitive selection process based on an open call for applications of candidates who meet pre-determined conditions laid down in the law ( 19 ).
The European standards require that safeguards of irremovability from office as a judge apply equally to the office of court president, that the procedure in the case of pre-term removal of court presidents be transparent, that any risk of political influence should be firmly excluded, and that the participation in this process of the Ministry of Justice should be avoided ( 20 ).
Figure 65: Appointment and dismissal of court presidents (*) ( 21 )
(*) The Member States appear in the alphabetical order of their geographical names in the original language. The symbol [O] means that the parliament dismisses (IE and MT) or proposes dismissal of court presidents (IE and UK (SC)). The figure presents the national frameworks as they were in place in December 2017. DK, DE, IE, AT and UK: No possibility for dismissing a court president solely in their function of a court president - the dismissal always includes also the dismissal from the function of a judge. CZ: Figure reflects the framework in place regarding the presidents and vice-presidents of the district courts, regional courts and high courts. DE: Appointment of court presidents varies among the federal states. ES: Although the formal appointment of court presidents is done by a Royal Decree signed by the King (in the capacity of Head of State) and the Minister of Justice, neither the King nor the Minister can object the binding proposal for appointment made by the Council for the Judiciary. LT: The Parliament appoints judges (chairpersons) of the Court of Appeal. HU: Figure reflects the appointment of presidents of district courts, and of labour and administrative courts, who are appointed by the regional court presidents. The President of the National Office for the Judiciary appoints the regional court presidents and the regional appeal court presidents. AT: Figure reflects the appointment of district court presidents (Bezirksgerichte). Federal President, who by law appoints court presidents on advice of the Minister of Justice, has in practice delegated the right to appoint district court presidents to the Minister of Justice, who in turn delegated the power to appoint to higher regional court presidents. Government appoints the higher regional courts presidents.
– Safeguards on the nomination of members of the Councils for the Judiciary –
Councils for the judiciary are essential bodies for ensuring the independence of justice. Well established European standards, in particular the 2010 Recommendation, state that ‘not less than half the members of [Councils for the Judiciary] should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary’ ( 22 ). It is for the Member States to organise their justice systems, including deciding on whether or not to establish a Council for the Judiciary. However, if a Council for the Judiciary has been established by a Member State, the independence of the Council must be guaranteed in line with European standards.
Figure 66: Appointment of judges-members of the Councils for the Judiciary: involvement of the judiciary (*) ( 23 )
(*) The Member States appear in the alphabetical order of their geographical names in the original language. The figure presents the national frameworks as they were in place in December 2017. DK: judges-members of the Council are selected by judges. All members are formally appointed by the Minister of Justice. EL: judges-members are selected by lot. ES: judges-members are appointed by the Parliament — the Council communicates to the Parliament the list of candidates who have received the support of a judges’ association or of 25 judges. NL: judges-members are selected by the judiciary and are appointed on the proposal of the Council, based among others on the advice of a selection committee (consisting mainly of judges and court staff). All members of the Council are formally appointed by a Royal Decree, an administrative act which does not leave any room for discretion to the executive. PL: Candidate judges-members are proposed by groups of at least 2 000 citizens or 25 judges. From among the candidates, the deputies’ clubs select up to nine candidates, from which a committee of the lower chamber of the Parliament (Sejm) establishes a final list of 15 candidates, who are appointed by the Sejm. RO: The campaign and election of judges-members are organised by the Superior Council of Magistracy. Once the final list of elected judges-members is confirmed, the Senate will validate it "en bloc". The Senate may refuse to validate the list only in case of infringement of the law in the procedure for the election of the members of the council and only if the infringement has had an influence over the result of the election. The Senate cannot exercise discretion over the the choice of candidates UK: judges-members are selected by judges.
– Safeguards relating to the functioning of the prosecution service –
Public prosecution plays a major role in the criminal justice system as well as in cooperation in criminal matters. The proper functioning of the prosecution service is important for fighting money laundering and corruption. For the purposes of judicial cooperation the public prosecutor’s office could be considered a Member State authority responsible for administering criminal justice ( 24 ).
Organisation of prosecution services varies throughout the EU and there is no uniform model for all Member States. However, there is a widespread tendency to allocate for a more independent prosecutor’s office, rather than one subordinated or linked to the executive ( 25 ). Whatever the model of the national justice system or the legal tradition in which it is anchored, European standards require that Member States take effective measures to guarantee that public prosecutors are able to fulfil their professional duties and responsibilities under adequate legal and organisational conditions ( 26 ) and without unjustified interference ( 27 ). In particular, where the government gives instruction of a general nature, for example on crime policy, such instructions must be in writing and published in an adequate way ( 28 ). Where the government has the power to give instruction to prosecute a specific case, such instructions must carry with them adequate guarantees ( 29 ). Interested parties (including victims) should be able to challenge a decision of a public prosecutor not to prosecute ( 30 ).
Figure 67 presents an overview of certain aspects of the organisation of the prosecution services. The figure shows who has the the management powers over the prosecution services, such as the power to decide on a disciplinary measure regarding a prosecutor, the power to transfer prosecutors without their consent, the power to evaluate and promote a prosecutor, and other control powers. The figure presents the authorities in charge of the management of the prosecution service: i) only the Prosecutor General; ii) combination of powers of the Prosecutor General and a Council for the Judiciary/Prosecutorial Council; iii) the role of the Ministry of Justice in the management of the prosecution service. The figure also shows whether the executive or the parliament have the possibility to give general guidance on crime policy or instructions on prosecution in individual cases. The figure does not present the arrangements in place on the internal independence of prosecutors in relation to the Prosecutor General. Figure 67 presents only a factual overview of certain aspects of the organisation of the prosecution services and does not assess their effective functioning, which requires a country-specific assessment ( 31 ).
Figure 67: Organisation of the prosecution services (*) (source: European Commission with the Expert Group on Money Laundering and Financing of Terrorism)
(*) The Member States appear in the alphabetical order of their geographical names in the original language. BE: Minister of Justice issues the directives on the prosecution and criminal policy on advice of the Board of prosecutors general. BG: Minister of Justice may propose the appointment, promotion, demotion, transfer and release from office of prosecutors CZ: Minister of Justice has the competence to decide promotion of prosecutors. DK: Ministry of Justice has the competence to decide on promotion and on disciplinary measures regarding prosecutors. FR: Minister of Justice has the competence to decide on disciplinary measures for prosecutors, after obtaining an opinion of the Supreme Council of Magistracy. CY: Council for the Judiciary dismisses the Prosecutor General. LT: Parliament (Seimas) sets the operational priorities of the Prosecution Service and conducts parliamentary scrutiny of non-procedural actions. LU: The Minister of Justice may instruct prosecution services to prosecute in a case (but cannot instruct not to prosecute). However, there have not been any such instructions since more than 20 years. There is no legal requirement for the Minister of Justice to consult a prosecutor or seek the opinion of the Prosecutor General on such an instruction. The Grand-Duke, as the Head of State, has the competence to decide on promotion of prosecutors. NL: The Minister of Justice may instruct prosecution services to prosecute or not to prosecute in a case, but needs to beforehand obtain a written reasoned opinion of the Attorney General's Office (College van procureurs-generaal) on the suggested instructions. However, so far, there has only been one such case more than twenty years ago. Minister of Justice has the competence to decide on certain disciplinary measure on prosecutors. AT: The Minister of Justice has to submit any instructions to subordinate prosecutors to an ‘Instruction Council’ (Weisungsrat) for consultation. PL: The Prosecutor General, who is also the Minister of Justice, has the competence to decide on the promotion of prosecutors. PT: Parliament can issue general guidance on prosecution policy. RO: Management powers by the Minister of justice consist of checking the managerial efficiency of prosecutors, the manner in which prosecutors exercise their powers and their relations with parties and others. The control cannot consist of checking the measures or decisions taken by prosecutors. The Minister of Justice, when he/she deems it necessary, on his/her own initiative or at the request of the Superior Council of Magistracy, shall exercise his/her control over public prosecutors through prosecutors appointed by the General Prosecutor of the Public Prosecutor’s office next to High Court of Cassation and Justice, or, as the case may be, by the Chief Prosecutor of the National Anticorruption Directorate, by the Chief Prosecutor of the Directorate for Investigation of Organized Crime and Terrorism, or by the minister of justice. The Minister of Justice may request information on the activity of the Public Prosecutor's Offices and may issue written guidelines on crime prevention and control. SK: The powers of the Prosecutorial Council do not include direct management over the prosecution service as referred to in the chart. SE: Government can issue general guidance regarding prosecution policy.
– Judicial activity of highest courts –
Highest national courts are important for ensuring the respect of judicial independence in situations relating to judges. In cooperation with the Association of the Councils of State and Supreme Administrative Jurisdictions of the EU (ACA-Europe) and the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC), the Commission developed a questionnaire that was replied to by the Supreme Courts and the Supreme Administrative Courts.
Figure 68 presents an overview of the powers and judicial activity of these courts in certain situations relating to judges, where judicial independence could come at risk. Where data are available, the numbers reflect how many such cases were dealt with by the highest courts from 2012 to 2017 or earlier, in case of landmark cases.
Figure 68: Powers and judicial activity of highest courts in situations relating to judges (*) (source: European Commission with ACA-Europe and NPSJC)
(*) The Member States appear in the alphabetical order of their geographical names in the original language. Disciplinary measures concerning a judge include preventive measures. Appeals lodged against the decision delivered by the judge concerned are not taken into account even if they raise issues regarding judicial independence or impartiality. Court instances involved in judicial activity between 2012 and 2017 and earlier landmark cases (in bold are names of the courts the case law of which is expressed in the figure; no number means no cases reported). BE: Conseil d’Etat (Council of State). BG: Върховен административен съд (Supreme Administrative Court). CZ: Nejvyšší správní soud (Supreme Administrative Court). DK: Højesteret (Supreme Court). DE: Bundesverwaltungsgericht (Federal Administrative Court), Dienstgerichte (Service Courts), Bundesverfassungsgericht (Federal Constitutional Court), federal court of the relevant jurisdiction. EE: Riikohus (Supreme Court). IE: Chúirt Uachtarach (Supreme Court). EL: Συμβούλιο της Επικρατείας (Council of State), chamber of the judge concerned. ES: Tribunal Supremo (Supreme Court), (special) chamber of the given court. FR: Conseil d’Etat (Council of State), Cour the Cassation (Supreme Court), first president of the court of appeal. HR: Vrhovni sud (Supreme Court), Ustavni Sud (Constitutional Court), president of the specific higher court, court president. IT: Consiglio de Stato (Council of State), Corte Suprema di Cassazione (Supreme Court). CY: decisions in these situations are taken by the Supreme Council of Judicature (SCJ), composed of the judges of the Supreme Court; the SCJ’s decisions are not subject to judicial review. LV: Augstākā tiesa (Supreme Court), Disciplinārtiesa (disciplinary court), higher administrative court. LT: Vyriausiasis Administracinis Teismas (Supreme Administrative Court), Aukščiausiasis Teismas (Supreme Court). LU: Cour administrative (Administrative Court) Cour de Cassation (Supreme Court). HU: Fővárosi Törvényszék (Budapest Regional Court), szolgálati bíróságok (Service Courts), other panel of the same court. MT: Court of Appeal, Constitutional Court. NL: Hoge Raad (Supreme Court), Centrale Raad van Beroep (highest administrative court in social cases), Raad van State (Council of State). AT: Verwaltungsgerichtshof (Supreme Administrative Court), Personalsenat (special evaluation panel) of the superior court, Oberster Gerichtshof (Supreme Court). PL: Naczelny Sąd Administracyjny (Supreme Administrative Court), other judicial panel of the same court, Sąd Najwyższy (Supreme Court); Number of challenges regarding the alleged lack of impartiality of judges reflects the total number of complaints against rejections of recusals in administrative courts, PT: Supremo Tribunal Administrativo (Supreme Administrative Court), Supremo Tribunal de Justiça (Supreme Court). RO: Înalta Curte de Casație și Justiție (Supreme Court). SI: Vrhovno sodišče (Supreme Court), court president. SK: Najvyšší súd (Supreme Court), Ústavný súd (Constitutional Court). FI: korkein hallinto-oikeus (Supreme Administrative Court), korkein oikeus (Supreme Court). SE: Arbetsdomstolen (Labour Court), tingsrätt (District Court), Högsta domstolen (Supreme Court), Högsta förvaltningsdomstolen (Supreme Administrative Court). UK: Supreme Court.
3.3.3. Summary on judicial independence
Judicial independence is a fundamental element of an effective justice system. It is vital for upholding the rule of law, the fairness of judicial proceedings and the trust of citizens and businesses in the legal system. For this reason, any justice reform should uphold the rule of law and comply with European standards on judicial independence. The Scoreboard shows trends in perceived judicial independence and overviews on the competence and influence of the executive relating to situations where judicial independence may become at risk.
·The 2018 Scoreboard presents the developments in perceived independence from surveys of citizens (Eurobarometer), companies (Eurobarometer and World Economic Forum) and judges (ENCJ):
-All surveys generally show similar results, particularly among the Member States with the lowest and the highest perceived judicial independence.
-The World Economic Forum survey (Figure 59), presented for the sixth time, shows that businesses’ perception of independence has improved or remained stable in about two-thirds of Member States, both when compared with the previous year or since 2010. Compared to 2010, there were improvements in several Member States with a low level of perceived independence.
-Among the reasons for the perceived lack of independence of courts and judges, the interference or pressure from government and politicians was the most stated reason, followed by the pressure from economic or other specific interests. Both reasons are still notable for several Member States where perceived independence is very low (Figures 55 and 57).
-Among the reasons for good perception of independence of courts and judges, nearly four-fifth of companies and of citizens (equivalent to 38 % or 44 % of all respondents, respectively) named the guarantees provided by the status and position of judges.
·The 2018 EU Justice Scoreboard presents overviews on the competence of the judiciary, the executive and the parliament in the appointment and dismissal of judges, court presidents, selection of judges-members of the Councils for the Judiciary, and some organisational aspects of the prosecution services:
-Figures 61-64 show the competence of the judiciary, the executive and the parliament in the appointment and dismissal of judges. In most Member States, a system of checks and balances exists and an independent body proposes candidate judges for appointment. For this reason, in Member States where a Council for the Judiciary has been established, it is crucial to guarantee its independence in line with European standards.
-Figure 65 shows the competence of the judiciary, the executive and the parliament in the appointment and dismissal of court presidents. In the majority of Member States, there are strong guarantees in the appointment and dismissal of court presidents. In very few Members States, the executive has a strong influence on the appointment and dismissal of court presidents.
-Figure 66 shows the involvement of the judiciary in the appointment of judges-members of the Council for the Judiciary. It is up to the Member States to organise their justice systems, including whether or not to establish a Council for the Judiciary. However, where a Council for the Judiciary has been established by a Member State, the independence of the Council must be guaranteed in line with European standards. In almost all Member States, the judges-members of the Councils are proposed and elected or selected by judges.
-For the first time, Figure 67 presents some elements of the organisation of the prosecution services.
-Highest national courts play a vital key role in ensuring judicial independence. For the first time, Figure 68 presents the powers and judicial activity of highest courts in certain situations relating to judges where their independence may come at risk. In certain Member States, there was a high level of judicial activity in these areas over the last five years.
The sixth edition of the EU Justice Scoreboard shows the trends in the functioning of the national justice systems more clearly: a number of Member States have shown determination in engaging in justice reforms and managed to further improve the effectiveness of their justice system. However, challenges remain not only in the functioning of the justice systems but also regarding the content of certain reforms carried out in Member States. The Commission is committed to ensure that any justice reform respect the rule of law and European standards on judicial independence.