Negotiators of the European Parliament and the Council of the EU reached agreement on Tuesday 30 June on the regulation on the service of judicial and extrajudicial documents in civil and commercial matters by electronic means and the regulation on digitising cooperation between the courts of the Member States in the taking of evidence (see EUROPE 12031/12).
The agreement on the two texts, which were negotiated at the same time, comes after only two 'trilogues' at the political level. The second trilogue, scheduled for 10 March, had to be cancelled due to the Covid-19 pandemic (see EUROPE 12509/25).
The agreement maintains the flagship element of the Commission's proposal, namely to enable courts to exchange information electronically and across borders.
One of the major differences between the co-legislators concerned the EU Council provision which allows a Member State to specify under which conditions it will accept service or notification of judicial documents by e-mail to persons having an address in its territory (see EUROPE 12382/1). The Parliament was also concerned that this would create variable geometry between Member States.
The provision was in fact retained in the text, as confirmed to us by two parliamentary sources, but on the condition that this is to guarantee the security of the transmission and where the legislation of the Member State lays down stricter conditions in this respect. These could include, for example, additional conditions regarding the integrity of the document sent or the identification of the sender and recipient, it was explained to us.
On the evidence-taking side, the final text retains the possibility of using, “in an appropriate manner and with the consent of the person to be heard”, the hearing of witnesses by videoconference.
With regard to privacy protection, it was also decided that personal data deemed irrelevant to a specific case will be deleted immediately.
Decentralised IT system
According to our information, the decentralised IT system will be composed of national computer systems and interconnected by national access points.
The final text specifies, by way of example, that “such decentralised IT system shall be based on an interoperable solution such as e-CODEX”. The Parliament was indeed very supportive of the reference to the e-CODEX standardised cross-border information exchange platform (EUROPE 12193/5) while the Commission and the EU Council, for whom both regulations are intended to be technologically neutral, were opposed to it.
The European Commission will also be responsible for the creation and maintenance of a reference implementation software that Member States may choose to apply as a back-end system instead of their national IT system. However, it will not be involved in the exchange of information, a parliamentary source said.
The Commission will have 15 months to establish the implementing acts needed to further specify the technicalities of the decentralised IT system. Member States will then have three years to implement it at national level.
Transmission deadlines
The agreement also provides, as a general rule, that the transmission of documents and communication between the various entities involved must be “without undue delay”. However, in some cases, deadlines were set in the text, as the European Parliament wanted, confirmed another source.
Franco Roberti (S&D, Italy), rapporteur for Service of judicial and extrajudicial in civil or commercial matters, said the agreement was “a step forward in the European judicial area”, which will offer legal certainty for European citizens and businesses.
For her part, Liesje Schreinemacher from the Netherlands, negotiator for the Renew Europe group, said she was delighted that the judicial systems can finally catch up with digital technology thanks to these new rules.
The agreement now has to be confirmed by both institutions. (Original version in French by Marion Fontana)