Progress on the Regulation on digitising cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters (see EUROPE 12031/12) is very slow in the Council of the EU. To such an extent that a European source informed EUROPE on Friday 12 April, that the adoption of a general approach on the text was unexpected under the Romanian Presidency of the Council.
Only three working meetings have reportedly taken place on the text since the Commission put its proposal on the table in May 2018. According to the same source, the recurring questions concern the cost of this digitisation, but also the broader question of whether access to justice should be fully digitised.
The major change brought about by the draft Regulation is indeed to make it compulsory for courts to exchange documents electronically across borders by a "decentralised computer system composed of national computer systems interconnected by a secure and reliable communication infrastructure".
However, during a working group discussion on 5 April of a first compromise version, several delegations also suggested that the use of this system should be made optional. Others, on the other hand, would have validated the principle of mandatory use, but only if there was a transition period.
The discussions also revolve around the question of whether a centralised or decentralised IT system is needed and whether this requires taking over an existing IT solution or establishing a new one.
Another issue discussed at the meeting was the definition of the jurisdictions impacted by these new rules. The compromise text, dated 29 March, of which EUROPE has had a copy, seems to give a rather broad interpretation of a 'court' by including judicial authorities, other authorities exercising judicial functions or authorities acting under the supervision of a judicial authority. However, according to the same source, the definition was considered unclear and no solution has yet been found on this issue.
One of the Commission's objectives was also to promote the hearing of witnesses by videoconference. The compromise text maintains this possibility when it is available in the courts. Again, discussions would focus on how to allocate costs between Member States as well as on the situations in which this may be possible or the legal professionals who should be involved.
At the meeting, the European Commission also announced that it would still have to consult the European Data Protection Supervisor (EDPS) on the impact of this legislative proposal, an obligation that probably stems from the new rules on the processing of personal data by the EU institutions and bodies (see EUROPE 12025/5).
It should be noted that this proposal for a Regulation goes hand in hand with the proposed new rules on the electronic service of judicial and extrajudicial documents in civil or commercial matters, which raise broadly the same issues among Member States and for which, again, a general approach in the Council of the EU by June is not expected.
According to our information, the text will be discussed again in the working group on 24 and 25 April. (Original version in French by Marion Fontana)