Green Paper: The problems confronting the cross-border litigant

1) OBJECTIVE

To analyse the existing obstacles to effective access to legal aid for European citizens involved in legal proceedings in a Member State other than their own. To make some suggestions for reform.

2) ACT

Commission Green Paper of 9 February 2000: Legal aid in civil matters: The problems confronting the cross-border litigant [COM(2000) 51 final - Not published in the Official Journal].

3) SUMMARY

1. One concomitant of increasing use of the treaty rights by firms and individuals (in particular the right of free movement of persons, goods and services) is an increase in the potential number of cross-border disputes within the European Union.

2. Firms or individuals threatened with proceedings or wishing to bring proceedings in another Member State may need legal aid in the form of:

• free or low-cost legal advice or court representation by a lawyer;
• partial or total exemption from other costs, such as court fees;
• direct financial assistance to defray the costs associated with litigation.

3. It is a corollary of the freedoms guaranteed by the EC Treaty that citizens must be able to bring or defend actions in the courts of another Member State in the same way as nationals of that Member State.

4. However, the fundamental differences in the legal aid systems in the Member States constitute an obstacle to exercising these rights in practice.

5. In some cases, persons involved in litigation in a Member State other than their own have to meet nationality or residence requirements in order to qualify for legal aid in that Member State or their own. In other cases, the extra costs of cross-border litigation may restrict access to justice in another Member State.

6. With a view to improving this state of affairs, the Tampere European Council on 15 and 16 October 1999 invited the Commission to put forward proposals for minimum standards ensuring an adequate level of legal aid in cross-border cases throughout the Union.

7. The Green Paper on legal aid in civil matters represents the first step towards the achievement of that goal. In it, the Commission analyses the existing obstacles to effective access to legal aid for European citizens involved in legal proceedings in a Member State other than their own, and explores various possible avenues of reform. Interested parties are invited to submit their comments in writing on the various sections of the Green Paper by 31 May 2000.

8. The obstacles identified by the Commission concern:

• Eligibility ratione personae (whether or not litigants fall within one of the categories of potential recipients of legal aid);
• Substantive eligibility (the extent to which the conditions of eligibility envisaged in the law of a Member State are met in a specific case);
• the extra costs engendered by cross-border litigation;
• effective access to an appropriately qualified lawyer;
• technical procedures;
• information and training;
• reform of the national legal aid systems.

Eligibility ratione personae

8. In general, the Member States grant legal aid only in respect of proceedings on their own territory. Persons involved in a dispute in a Member State other than their own, therefore have to look to that Member State for legal aid.

9. However, some Member States attach nationality or residence requirements to legal aid, or require applicants to be present on their territory. In other words, cross-border litigants may find themselves in a situation in which they are entitled to legal aid in neither their home nor host state.

10. This situation appears to be at odds with Court of Justice case-law, which suggests that any beneficiary of a Community law right (including a cross-border recipient of services or purchaser of goods) is entitled to equal treatment with nationals of the host country as regards both formal entitlement to bring actions and also the practical conditions in which such actions can be brought.

Rules requiring foreign nationals to be resident or present on the territory of a Member State in order to exercise their rights would be contrary to Article 12 EC, which prohibits nationality discrimination.

11. Apart from Court judgments, there are no texts which clearly spell out the Member States' obligations under Article 12 EC.

Some international or regional conventions contain provisions on legal aid, but either their scope is unclear (as in the case of the European Convention on Human Rights) or their application is not guaranteed because they have not been ratified by most Member States (as in the case of the Hague Convention of 1980 on international access to justice).

12. With a view to filling this legal vacuum, the Commission considers that it might be useful to produce easily understandable texts clarifying the Member States' obligation to guarantee access to legal aid for Community nationals. This obligation could, if appropriate, be extended to cover third-country nationals habitually resident in a Member State.

Substantive eligibility

13. It is not sufficient merely for litigants to fall within one of the categories of potential recipients of legal aid (eligibility ratione personae), in order to obtain legal aid in another Member State.

14. Applicants must also prove that they are substantively eligible, namely that:

• they meet the specific conditions of eligibility envisaged by that state's legislation, in particular with regard to their financial circumstances and the merits of the case for which legal aid is required;
• legal aid is available for the type of procedure in which they are involved.

15. The financial thresholds applied by certain Member States to determine whether applicants qualify for legal aid do not take account of differences in income levels between the Member States.

Consequently, an applicant residing in a Member State in which the cost of living is higher than in the state where the procedure is to take place may be deterred from instituting cross-border litigation for fear that he will not be eligible for legal aid in the host country.

The Commission takes the view that discrimination of this type could be avoided by applying a weighting to the financial criteria used by the country of litigation to take account of the differences in the cost of living in the two countries involved.

16. Another problem concerns the merits of the procedure for which legal aid is required. In most Member States, merits tests are based on criteria which allow for a broad subjective margin of appraisal. The Commission calls for greater transparency in this area.

17. With regard to the second aspect of substantive eligibility - conditions relating to the type of procedure for which legal aid is sought - the Commission notes that some Member States exclude legal aid before certain courts (such as administrative tribunals) or in respect of certain types of action (such as defamation).

Extra costs engendered by cross-border litigation

18. Cross-border litigants may be confronted by various extra expenses resulting specifically from the fact that the case has a cross-border element, such as:

• costs relating to the necessity of hiring two lawyers;
• translation and interpreting costs;
• miscellaneous factors, such as extra travel costs of litigants, witnesses, lawyers, etc.

Measures should be taken to ensure that these extra costs do not impede access to justice.

Effective access to an appropriately qualified lawyer

19. Cross-border litigants may have difficulty in finding a lawyer in the country of litigation who is qualified to plead in the courts which have jurisdiction to hear the case, who has experience in the relevant field and who shares a common language with them.

20. The Commission sees the creation of databases of legal professionals as a possible solution.

National lawyers forming part of this "network of lawyers" could be appointed as correspondents for one or more other Member States.

Technical procedures

21. Apart from the issues discussed above, the mechanics of applying for legal aid in another Member State can also constitute an impediment to justice for cross-border litigants.

22. Although most Member States have ratified the 1977 Agreement of the Council of Europe on the Transmission of Applications for Legal Aid ("the Strasbourg agreement"), it is comparatively underused. This is due to a lack of knowledge in the Member States of the existence of a right to legal aid abroad and of the mechanism set up by the agreement.

23. There are two possible solutions:

• adopting a recommendation that all Member States ratify and apply the Strasbourg agreement, or
• adopting a new mechanism for transmitting legal aid applications at Union level, based on the Convention on the service of judicial and extrajudicial documents in civil or commercial matters of 26 May 1997.

Information and training

24. Information on legal aid rights and procedures has so far mainly been targeted on national authorities rather than ordinary people.

25. Since the start of 2000, the "Dialogue with Citizens" website, comprising a guide entitled "Enforcing Your Rights in the Single European Market", has provided individuals with information on how to seek redress if they encounter difficulties when exercising their single market rights. There is also a Guide to Legal Aid and Advice in the European Economic Area, which was drawn up in 1995 and is mainly targeted on the legal professions.

26. These two guides should be more widely promoted by national authorities. This could be complemented by actions to promote training and information campaigns for the public bodies and professions involved in legal aid (lawyers, judges, police officers, immigration services, etc.) and by support measures for lawyers who agree to work under the legal aid system.

Reform of the national legal aid systems and alternative means of ensuring access to justice

27. Several Member States are discussing ways of reforming their legal aid systems. The Commission would point out that reforms should not jeopardise the goal of establishing minimum standards for legal aid at Union level.

See also

See also:

Site entitled "Freedom, Security and Justice" of the Directorate-General for Justice and Home Affairs of the European Commission:

• Judicial co-operation between Member States in civil and commercial matters is a European Community policy linked to the free circulation of people

Site entitled "Freedom, Security and Justice" of the European Parliament:

• Thematic factsheet
• Scoreboard

Last updated: 21.11.2003