On 3 December, the European Ministers of Justice are expected to reach political agreement (‘general approach’) on the regulation on digitising cooperation between Member States’ courts in the taking of evidence in civil and trade matters (see EUROPE 12031/12).
Progress in the EU Council has been very slow on this proposal, which was presented by the European Commission in May 2018. The issue is not only the cost of digitisation, but also the broader question of whether access to justice should be fully digitised. However, according to a European source, the main difficulties have been resolved and the text is now ready for adoption.
The major change brought about by the draft regulation is indeed to make it compulsory for courts to exchange documents electronically across borders using a “decentralised computer system made up of national computer systems interconnected by a secure and reliable communication infrastructure”.
At the June ‘Justice’ Council (see EUROPE 12270/1), the European Ministers of Justice considered that the introduction and mandatory use of such a system would be possible, provided that there was a transitional period with the possibility of derogations.
A compromise text, dated 18 November, a copy of which has been obtained by EUROPE, maintains the use of a decentralised computer system along with a transition period of 5 years from publication of the Regulation in the Official Journal of the EU.
It also provides for several derogations, including: - in case of system malfunction; - when electronic transmission is not possible due to the nature of the evidence (for example, for a DNA or blood sample); - when the conversion of large documents into electronic form would impose a disproportionate burden on the competent authorities; - or when the original paper document is necessary to assess its authenticity.
In these cases, the text specifies that transmission should be carried out by “the most appropriate means”, i.e. as quickly as possible and in a secure manner, by other electronic means or by post.
The text also mandates that the Commission maintain and support the implementation of the software components underlying the access points to the Communication Infrastructure. On the other hand, each Member State is responsible for the costs of installing, operating and maintaining its access points to the communication infrastructure linking national computer systems as part of the decentralised computer system.
The text is technologically neutral, and for this reason it does not specifically mention e-Codex, although the ministers had come out in favour of using this existing IT solution rather than implementing a new one, explained the same source.
It should also be noted that the Commission’s proposal, issued in June, to make a common reference management system available as a transitional solution for countries that have not yet developed an adequate national system, has been included in the text.
Finally, the draft text maintains the provision that digital evidence collected in one Member State cannot be deprived of its evidentiary status in another Member State solely because of its digital nature.
Nevertheless, it adds: “this principle should not otherwise affect the competence of the court seised with the proceedings to assess legal effects of such documents or their admissibility as evidence. It should also be without prejudice to requirements of national law on conversion of documents”.
Electronic notification of judicial acts. The regulation goes hand in hand with the proposed new rules on the electronic service of judicial and extrajudicial documents in civil and trade matters, for which agreement is also expected on 3 December. (Original version in French by Marion Fontana)