On Tuesday, 3 December, the European Ministers of Justice reached political agreement (a 'general approach') on the regulation on digitising cooperation between the courts of the Member States in the taking of evidence and on the regulation on the service of judicial and extrajudicial documents in civil or commercial matters by electronic means (see EUROPE 12031/12).
The key change introduced by the draft regulation is to make it compulsory for courts to exchange documents electronically across borders using a decentralised computer system made up of national computer systems connected together by a secure and reliable communications infrastructure.
The compromise texts maintain this principle, but add a transitional period of 5 years and several exemptions (see EUROPE 12375/9), particularly in the event of a system malfunction or when electronic transmission is not possible because of the nature of the evidence (for a DNA or blood sample, for example).
The draft regulations also give the Commission responsibility for creating, maintaining and further developing reference software that Member States may choose to use as a back-end system instead of a computer system they have developed at national level.
On Wednesday, 27 November, at the meeting of Member States' ambassadors to the EU (Coreper), Austria, the Czech Republic, Estonia, Germany, Hungary, Italy, the Netherlands, Portugal, Slovenia and Spain issued a statement supporting the use of the e-CODEX system, even though it is not mentioned in the regulations, which are intended to be technologically neutral (see EUROPE 12375/9).
In a round table discussion at the Justice Council, these countries reiterated their request to the Commission to present a proposal allowing eu-LISA to guarantee e-CODEX is maintained and is interoperable. The Commission has promised to consider this request as soon as it can.
In their statement issued on Wednesday, Estonia, Ireland and Portugal said that it was regrettable that the provision allowing a Member State to specify the conditions under which it will accept judicial documents being served by electronic mail to persons with an address in its territory leaves Member States too much discretion to refuse to accept them.
These three countries regretted the fact that there was not enough time to study the impact of this objection on judicial proceedings before the general approach was adopted and hoped that the forthcoming negotiations with the European Parliament would lead to a better solution.
By way of contrast, France supports the provision. French Minister Nicole Belloubet said that setting conditions for service of documents by e-mail alone allows Member States to maintain their requirements with respect to security of trade.
Didier Reynders, the European Commissioner for Justice, welcomed the agreement, but was not in favour of the proposed implementation period for the two regulations, which he considered to be “too long”. (Original version in French by Marion Fontana)