The European Ministers of Justice took a further step on Thursday 6 June towards a compromise on the proposal for a Regulation digitising cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters, as well as on the service of judicial documents by electronic means (see EUROPE 12031/12).
They were invited to comment on the major change made by the Commission in these two proposals, namely to require the cross-border electronic exchange of evidence and the electronic notification of judicial documents via a “decentralised IT system composed of national computer systems interconnected by a secure and reliable communications infrastructure” (see EUROPE 12235/4).
It became clear during the ministerial discussion that the establishment and mandatory use of such a system would be possible for Member States, as long as both a transitional period and derogations are provided for.
Belgium, Germany, Greece, Lithuania, Portugal, France, Luxembourg, Italy, Estonia, Spain and Malta clearly supported the mandatory use of the system, with a “long” transition period to allow sufficient time for Member States to adapt both technically and legally. While the other countries did not go into detail, Malta also suggested a transition period of three to five years.
In addition, several Member States welcomed the Commission's proposal to make a common reference management system available as a transitional solution for countries that have not yet developed an adequate national system.
In contrast, the Netherlands, Sweden, the United Kingdom and Cyprus expressed a clear preference for an optional system. “The added value of mandatory use of the system is not yet sufficiently clear to us”, said Dutch Minister Ferdinand Grapperhaus, maintaining that the system would be equally used if it were not mandatory.
Sweden stressed the need to carefully analyse the possible consequences of using “common and constraining technology”. In particular, the Swedish Minister, Morgan Johansson, considered that, in some cases, secure e-mails are a sufficient means of communication.
“Will the benefits justify the costs of such a system?” That is the question posed by Cyprus. The country thinks that before making a final decision, more details should be provided on the technical aspects of the system, its implementation costs and its legal implications for each Member State, which are not all at the same stage of digitisation.
If the use of the system is to become mandatory, most countries stressed the need for derogations allowing, in some cases, jurisdictions to revert to traditional channels of information exchange.
Portugal, Spain and Luxembourg in particular argued that this should be limited to specific and exceptional cases, such as when it is impossible to digitise evidence because of its nature (e.g. DNA or blood samples) or in the event of a computer system malfunction.
“Of course, there must be exceptions! But exceptions must not become the rule”, warned Raivo Aeg, the Estonian minister.
There was a much clearer consensus on the choice between a centralised or decentralised computer system. Almost all Member States that took the floor at the meeting expressed their support for a decentralised system that is compatible with existing national computer systems.
A majority of them also supported the use of an existing IT solution - e-Codex - rather than the implementation of a new solution.
Technical work on the texts will continue under the Finnish EU Council Presidency. (Original version in French by Marion Fontana)