CCBE : Contribution aux assises de la Justice


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CCBE : Contribution aux assises de la Justice

  1. 1. Conseil des barreaux européens Council of Bars and Law Societies of Europe Association internationale sans but lucratif Rue Joseph II, 40 /8 – 1000 Bruxelles T. : +32 (0)2 234 65 10 – F. : +32 (0)2 234 65 11 Email : – CONTRIBUTION FROM THE COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE (CCBE) TO THE DEBATE LAUNCHED BY THE ASSISES DE LA JUSTICE CONFERENCE 21-22 November 2013 About the CCBE The Council of Bars and Law Societies of Europe (CCBE) is the representative organisation of more than one million European lawyers through its member bars and law societies from 32 full member countries, and 12 further associate and observer countries. Ahead of the ‘Assises de la Justice’ conference organised by the European Commission DirectorateGeneral for Justice, the Commission published ‘Discussion papers’1 to help stakeholders and participants prepare for the Assises, and to ‘reflect on the justice policy of the European Union’. The conference was part of the preparatory work for the next programme in the area of justice, freedom and security that will run from 2014 to 2019. This contribution is based on the discussion papers of the Commission as well as the work of the CCBE, and is meant serve as a basis for discussion towards a future programme for justice, fundamental rights and the rule of law for the European Union. Its content is divided into five sections, each corresponding to the relevant Discussion Paper. General The CCBE welcomes the European Commission’s initiative in holding the Assises de la Justice conference. As a general comment about the procedure used so far, the conference, whilst laudable in its aims, did not result in the wide-ranging, open analysis and debate about future justice policy that the legal profession expected. This is unfortunate considering many experts were present in the room ready and willing to engage. The CCBE therefore takes this opportunity to ask the European Commission to organise more such stakeholder events, taking advantage of the workshop format to receive input from experts. These events could be built around the Justice Forum (see below). Further open-ended consultations with the legal profession and other stakeholders are also needed, seeking out opinions (for instance through a wide online consultation in all official languages of the EU, supported by sufficient awareness campaigns). The Commission should take into account the result of these consultations in its future legislative work. 1 1
  2. 2. Executive summary of CCBE comments The CCBE believes that the principles of the rule of law should continue to be given maximum significance and publicity in the actions of the EU. Specific actions should include regular exchanges between professionals (e.g. Justice Forum), training to put lawyers and judges on an equal footing, and the guaranteed involvement of experienced legal practitioners in delivering external aid in support of the rule of law. The role of the Fundamental Rights Agency should be reinforced, and the practice of the European Commission in giving a “formal notice” to a Member State should be established to tackle concerns over the rule of law. Regarding the EU Justice Scoreboard, the CCBE recommends a definition of minimum standards for each aspect of e-Justice systems, in order to encourage their use in a rational and effective manner. As an overarching principle, legal aid should be effectively available in civil and criminal matters; since legal aid is covered by different Commission discussion papers, it has also been addressed in different sections of this response. In the field of Civil Law, legal aid should be afforded in civil law matters in order to ensure equality of arms. Data protection legislation, at European and international level, should protect the confidentiality of lawyer-client communications against government surveillance; to that effect, the CCBE recommends higher standards for data processing by administrations, a minimum level of legal protection afforded to professional secrecy from government electronic surveillance, and better guarantees on the use of cloud computing. Although e-justice systems are mostly designed at national level, EU standards should be developed to ensure the quality of cross-border proceedings; our recommendations include reliable management of evidence, better training, and steps to avoid the shifting of administrative burdens to lawyers. In the field of contract law, work should be undertaken in the field of service contracts. Areas of improvement in Family Law include more cooperation in cross-border aspects, better tools for locating debtors abroad, and harmonised criteria for the assessment and evaluation of the child’s interest in order to avoid contradictory conclusions. Legal aid in criminal matters should be made available to victims and also to suspects and the accused. Future measures should cover the full implementation of the Stockholm programme, a review of existing measures and how they have been implemented at national level, further strengthening of procedural safeguards and the definitions of certain crimes subjected to EU measures, together with additional training for lawyers. The CCBE recommends urgent legislative action on the presumption of innocence. In order to ensure access to fundamental rights, further actions in support of the application of the Charter of Fundamental Rights should focus on legal aid, and increased powers and funding for the Fundamental Rights Agency. Keywords CCBE, bars, law societies, lawyers, training, e-justice, legal aid, family law, service contracts, cloud computing, data protection, professional secrecy, legal professional privilege, external aid 2
  3. 3. DISCUSSION PAPER 4: RULE OF LAW GENERAL COMMENTS It is of utmost importance that the EU institutions and the Member States adhere, and are seen to adhere, to the principles of the rule of law in all their dealings. Although we have given rather technical suggestions in the rest of our contribution, we nevertheless feel that the principles of the rule of law should continue to be given maximum significance and publicity in the EU’s dealings. It is critical in this regard that the functioning of the General Court be dramatically improved so that it can operate as a true administrative court for the EU. We consider it highly important that there is regular exchange between professionals working in the justice systems. We believe that the Justice Forum, which was launched by the Commission in 2008, is the appropriate platform for professionals to come together to discuss crucial issues such as the EU Justice Scoreboard, e-Justice and others. If held on a regular basis, these meetings can be of great value to further the application of EU law and strengthen mutual understanding and trust. Therefore, the CCBE calls on the Commission to re-launch the Justice Forum. We also believe that lawyers should be included in the European Judicial Network in criminal matters, from which they are currently excluded. TRAINING The European Commission Communication "Building trust in EU-wide justice: a new dimension to European judicial training" of 13 September 2011 recognises the importance of the role of lawyers in the administration of justice. It expressly states that: “Lawyers, while constituting an autonomous profession, are an integral and necessary part of judicial activity and they play a central role in the implementation of Union law. (…) Taking into account the spirit and the aims of the Treaty's provisions, it is possible to extend these provisions to these two professions.” We welcome this development and also hope that lawyers will eventually be put on an equal footing with judges and prosecutors in the ongoing work of DG Justice as far as European Judicial Training is concerned. Lawyers are essential actors in the administration of justice and indeed the first persons that users of justice contact. They are a fundamental pillar for the creation of confidence in the European judicial area. To step up training of legal professionals, we believe it important that the European Commission develops systematically “Training kits” about EU law instruments and in particular new instruments. This could back the political agenda of the EU in a practical way and help improve implementation (see CCBE comments on European Legal Training of 2010 2). We realise that the European Commission has prepared such training material for very specific and selected EU instruments, but we are of the opinion that the European Commission should consider how this could be achieved more widely. 2 English: French: 3
  4. 4. EXTERNAL AID The European Commission possesses some instruments that allow organisations to implement justice projects outside the EU. Nevertheless, these instruments are normally under the umbrella of the EU “external Directorates General” such as DG Development and Cooperation (DG DEVCO) or the European External Action Service (mainly through EU delegations) and DG Enlargement. This means that there are people awarding grants and some recipients of funding who, even if they have experience in external cooperation, are not experienced in the specificities of the justice area. The CCBE is already aware of these problems since it is regularly contacted by NGOs or consultancies that, after being awarded a contract or a grant, come to the CCBE asking for experts and help. The EU approach is to be contrasted with that followed in the USA, where the American Bar Association’s Rule of Law Initiative channels millions of dollars’ worth of US government funding through its single organisation, enabling it to build up networks, staffing and expertise in the justice area. No similar EU organisation exists or is able to compete with its influence. As a result, EU external funding is much less efficient in the justice field. There is a variety of ways that this problem can be handled. An agency for external justice programmes could be established, or maybe more simply and efficiently, DG Justice could create a Financial Programme through which all justice projects outside the EU must pass. This would allow European organisations with significant experience in justice issues to implement projects in important fields such as human rights in non EU countries, something which currently is difficult to achieve because of existing, scattered structures. EU JUSTICE SCOREBOARD AND E-JUSTICE SYSTEMS General The Rule of Law discussion paper specifically raises the usefulness of the new EU Justice Scoreboard. The EU Justice Scoreboard is a useful information tool to assist the EU and its Member States in achieving more effective justice. However, the Scoreboard draws its data from statistical information published by the Member States, which is often lacking or erroneous when it comes to lawyer data. In order to fill the gaps, we encourage more direct liaison with the European legal profession and its experts. The Scoreboard’s use of quantitative data allows the analysis, measuring, and therefore rationalisation of decision processes that a strictly qualitative approach does not allow, especially on the scale of 28 EU Member States. Its implementation is complex, ambitious and demanding, and must comply with the high standards of quality the public and the experts expect of DG Justice. The use and aggregation of data from multiple sources, gathered by third parties to ends differing from those of the scoreboard, and covering different time frames and geographical areas, may present some challenges or leave some gaps. We therefore suggest that the publication of any data, indicators, draft analysis or recommendations be accompanied by an inventory of the sources and methods used. This will ensure that the unavoidable limitations of this data collection process are taken into account in any analysis made. 4
  5. 5. The publication of the Scoreboard should clearly lay out its methodology and objectives, explain the choice of sources and list available alternatives at the time, and justify the choice of sources or indicators used. Several Bars have put in place observatories of their own that have already worked together towards the delivery of country typologies within the European Union, and invites the Commission to seek out the skills and methods developed in this field that could further facilitate the implementation of the Scoreboard. The CCBE has the further following comments about one aspect of the Scoreboard, to make it more useful in the future. E-justice systems We believe that the evaluation of e-Justice systems, notably by the EU Justice Scoreboard, should be based on comprehensive and relevant criteria that include a definition of minimum standards for each aspect of e-Justice systems, in order to encourage their use in a rational and effective manner. More detail on this specific aspect is given below under the following headings: ‘Evaluation approach and methodology’ and ‘Evaluation criteria’. Evaluation approach and methodology Providing a precise overview of how different countries use the Information and Communication Technology (ICT) systems for courts in their judicial systems is a very important aspect that deserves a lot more attention than it currently receives. It can not only provide an incentive to a healthy competition of prestige between different court systems, but can also act as a repository of best practices. However, the current approach seems to lack a certain finesse and provides an incentive for a minimalistic approach of using ICT tools, which at the end, does not provide a quicker resolution of cases or better transparency in the working of courts. The current questions and methods of scoring ICT systems are not able to provide any meaningful overview of how advanced the use of ICT systems is in different Member States, as noted in Question No. "Q8" and in Table A1 on page 652 of The European Commission for the Efficiency of Justice (CEPEJ) study “The functioning of judicial systems and the situation of the economy in the European Union Member States 3”, and in Section 3.3 of the EU Justice Scoreboard. ICT indexes are calculated according to three groupings ("Computer facilities used for the direct assistance of judges and court clerks", "Systems for the registration and management of cases" and "Electronic communication and information exchange between the courts and their environment") and each grouping is awarded a score based on answers given to a questionnaire (see chapter 5.3 the 2012 "Evaluation report on European judicial systems”4, mainly based on what percentage of the courts use certain computer facilities, such as videoconferencing. The first grouping, "Computer facilities used for the direct assistance of judges and court clerks" surveys the percentage of courts with access to tools such as word processing, email and internet access or "electronic files". The results show that with the exception of Greece, all courts in Europe have access to such tools. Based on the content of Table A1 and the uniformity of results in different countries, such a survey can no longer provide meaningful information about the ICT facilities used by courts, because the basis for comparison has been set very low. We suggest concentrating further efforts on a more detailed overview of the current second and third grouping. 3 4 5
  6. 6. Regarding the second grouping, "systems for the registration and management of cases", two of the elements included in this grouping, "case tracking system" and "court management information system" provides too much discrepancy in discerning whether courts have such systems in place. In the CEPEJ study published in 2012, "case tracking" was called "case registration system". The CCBE suggests providing further information in the study on what is considered a “minimum feature” in such systems. It is very easy to call a basic electronic registry of case numbers, parties and subjects a "case tracking system", even though it is not integrated in any other IT system. For example, judges can search data by case number and parties' names, but the data may not be otherwise used in saving the signatory paper version of electronic documents. The introduction of such a minimal system should not receive the same score as a case tracking system where a full electronic file, including case history and submissions, is available for the judge to review. If the scores are awarded on the basis of such a minimalistic interpretation, then this favours countries that choose this basic solution, which is cheaper to implement, but provides less effective support for the quicker completion of cases. The same is true for a "court management information system." Without the definition of a required minimum set of functions, this will only serve as a marketing tool for software developers wishing to sell systems to courts, such as "enterprise resource planning software", which is often the most basic software providing accounting and inventory management functions. The CCBE believes that the same risk presents itself with regard to court management information systems. Therefore, the CCBE suggests, first, a definition of a minimum set of functions that a system should meet in order to be considered "case tracking" or "court management information” systems, and second, in the next study we recommend a more detailed overview on what set of functions are provided in different countries. We also recommend that scoring should take such functionality differences into account. With regard to the third grouping, "electronic communication and information exchange between the courts and their environment", the definition of "electronic web forms" is too technically restrictive and not significant. The CCBE suggests placing greater emphasis on the capability to launch certain procedures (including the processing of small claims, undisputed debt recovery and submission of claims) in an electronic manner. "Web forms" features that do not allow the submission of forms that have been filled out offline or using non web-based forms offer no inherent advantage. Consideration should also be taken of the proliferation of different kinds of user devices (i.e. tablets and smartphones) to infer that the user interface of the average citizen is subject to a variety of means. As a consequence, more interactive interfaces will be required from courts (touchscreen, voice recognition and interactive voice response). As a result, the CCBE suggests the deletion of "electronic web forms" to instead focus attention on the capability of citizens and enterprises to initiate proceedings in an electronic manner and to be able to communicate with the courts in the same manner, if they wish to do so. Evaluation criteria The CCBE suggests the inclusion of new criteria in assessing the electronic court procedures used in different member states. The use of ICT systems can make a difference and reduce the administrative burden not only for courts, law enforcement and regulatory bodies, but also for lawyers, who are the key users of these e-government services. However, lawyers have to take into account that there are considerable risks in using electronic court procedures, including financial and reputational risk. Without the proper involvement of lawyers in the development of new e-court systems, courts may give in to an unfortunate tendency to shift unduly onerous administrative burdens to lawyers or simply to fail to provide sufficient technical measures to meet the long term requirements of the 6
  7. 7. private use of these systems. Lawyers must be able to rely on evidence (to defend themselves from unfounded claims of clients and authorities), and therefore must to be able to file and archive electronic documents and related metadata in a dependable way. Court systems have to take into account the different working practices of single-practitioner lawyers and law firms. Issues to be raised include, for example, the possibility of being able to substitute a lawyer in the acknowledgement of receipt of e-documents, e.g. during a lawyer's absence from business. Therefore, the CCBE suggests that the EU Justice Scoreboard should include scores based on how other key stakeholders (including lawyers) were involved in the development of an e-court system that interacts with persons outside courts. Consideration might include how early such persons were identified and involved in the preparatory and development process, and whether they were able to provide input into the design and development of the system. QUESTIONS With regard to the two questions raised in the paper, we have the following brief comments: Question 1: In terms of respect for the rule of law in a Member State, which circumstances would trigger a need for action at EU level? There is a need for action at the EU level:  In situations that raise serious concern relating to respect of the rule of law,  If there are no available safeguards at national level to remedy a situation (e.g. there is serious doubt about the independence of the national court). Question 2: What type of action at EU level would you consider necessary to effectively address rule of law concerns in a Member State? We suggest considering the following actions at the EU level to address rule of law concerns in a Member State effectively:  Establishing the practice of giving “formal notice” to a Member State by the European Commission, passed by the majority of the Member States (with attention given to competence, legal basis and format)  Closer cooperation with the Venice Commission, the expert body of the Council of Europe,  Strengthening the role of the EU Agency for Fundamental Rights (FRA)  Involving the legal profession more closely in the efforts towards improving the European legislative process, in order to improve the overall quality of EU legislation. 7
  8. 8. DISCUSSION PAPER 1: CIVIL LAW 1.1. GENERAL COMMENTS ON LEGAL AID The provision of adequate legal aid is essential to the administration of justice both in the civil and criminal law fields. Legal aid ensures more efficient representation on both sides of a dispute, and an equality of arms between the parties, which is an essential feature of justice. Regarding legal aid, we would like to refer to our recommendations of October 20105: 1. Deal with legal aid as a fundamental right that guarantees access to justice and allows real and effective defence – and not only formal defence - which should be granted to all, irrespective of residence or nationality. Consider legal aid as the priority procedural safeguard; 2. Set up a specific EU budget line to ensure the development of a European legal-aid scheme and to support national schemes within Member States.; 3. Give specific attention to assistance to suspects and particularly vulnerable groups; 4. Ensure legal-aid coverage for all legal areas, jurisdictions and alternative dispute resolutions, including the assistance of a lawyer at all stages of the proceedings, the assistance of experts, translation and interpretation, and other trial costs; 5. Guarantee specific coverage for additional costs arising out of cross-border trials; 6. Set common minimum standards for granting legal aid within the territory of the EU; 7. Circulate and make easy broad access for citizens to the necessary information on how to receive legal aid; 8. Promote e-management for legal aid by applicants and interoperability by public services; 9. Recognise the essential role of lawyers in legal proceedings, in particular by highlighting deontological supervision and quality of service initiatives developed by Bars and Law Societies; 10. Support specific training for lawyers who provide services in the framework of legal aid. Any developments towards European legal aid mechanisms should be compatible with existing national legal aid schemes within Member States. 1.2. INFORMATION TECHNOLOGY LAW a. Data protection – professional secrecy and legal professional privilege The European Commission has always recognised that to improve the quality of legislation, thought must be given to the potential impact on citizens and their fundamental rights. The CCBE notes with great concern the recent revelations of governmental practices involving the mass violation of the human right to private life and personal data being carried out on a systematic scale by governmental agencies of leading Western powers, including Member States of the European Union.6 Such allegations indicate clear violations of the Charter of Fundamental 5 English: French: 6 See CCBE Statement on mass electronic surveillance by government bodies, October 2013, 8
  9. 9. Rights of the European Union by certain EU government bodies, mainly article 7 and 8, and also, due to the lack of any mechanisms for appropriate judicial review, article 47. The alleged indiscriminate access to, and large-scale surveillance of, communications between non-US nationals also covered communications between lawyers and their clients. The CCBE has repeatedly stressed the importance of professional secrecy (known in some countries as ‘legal professional privilege’) and would point out that the European Court of Justice itself expressly stated in its decision in AM & S Europe Limited v Commission of the European Communities (case C-155/79) “that confidentiality serves the requirements, the importance of which is recognised in all of the member states, that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it”, and added that “the principle of the protection against disclosure afforded to written communications between lawyer and client is based principally on a recognition of the very nature of the legal profession, inasmuch as it contributes towards the maintenance of the rule of law and that the rights of the defence must be respected”. This core value of the legal profession is, however, under attack from organisations with highly sophisticated technical capabilities and financial means, including state bodies with secret investigatory powers. Lawyers have no choice but to use modern technology when communicating with clients, courts, lawyer colleagues and others. Yet it now appears that such technology is not safe to use. The erosion of the confidentiality of lawyer-client communications erodes the trust of a citizen in the rule of law. While the CCBE recognises the necessity for government bodies in law enforcement and national security to conduct electronic surveillance of citizens in certain limited circumstances, the loss of confidence that has occurred can now only be addressed by political means: for instance, by carefully analysing what areas of surveillance should not be made public, and, as a corollary, where civil participation (including through representatives of the legal profession) could be useful to regain and maintain the trust of the public. Recommendations 1. Referring to the CCBE’s position7 (adopted 7/9/2012) on the proposed data protection reform package, the CCBE believes that law enforcement authorities’ obligations regarding the protection of personal data and any other data subject to professional secrecy should be at least as high as the protection expected from data controlling entities in the private sphere. This reinforces the need to have a single, comprehensive data protection regime. 2. Furthermore, steps must be taken at the EU level to establish the minimum level of legal protection afforded to professional secrecy from government electronic surveillance, including the use of electronic communications services or other cloud service for lawyerclient communications. Lawyer-client use of these facilities should be protected in the same way regardless of whether they are stored in a data centre, or in a computer at the lawyer's office or on his person. Content that contains a professional secret, and that is processed by an electronic communication service or a cloud service provider (including an email service provider), should not be accessible to government agencies. Electronic communications services and cloud service providers should be required to offer lawyers an option to indicate such information – of course, only after careful verification as to whether that user is indeed a lawyer as claimed. 3. EU minimum standards for electronic surveillance should be established, including the need to place reasonable limits on the invocation of national security as grounds to restrict the right to privacy. Such regulatory work should be based on reports and suggestions already made at regional and international level on this subject as, for example, demonstrated in 7 9
  10. 10. the report by Frank La Rue, Special Rapporteur of the Human Rights Council of the United Nations8 or the draft report by a Committee of the Council of Europe Parliamentary Assembly, "Compilation of good practices on legal and institutional frameworks and measures that ensure respect for human rights by intelligence agencies while countering terrorism, including on their oversight"9. 4. The EU should work towards reinforcing the right to privacy at the international level, e.g. based on optional protocols to Article 17 of the International Covenant on Civil and Political Rights, and by strengthening the level of protection guaranteed in practice by the Safe Harbour Privacy Principles. As regards European countries outside the European Economic Area, within the framework of the on-going modernisation process of the convention, the EU should support adoption of more specific and detailed exceptions under Article 9 of Convention 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data. 5. Beyond all the necessary protection measures that can be achieved by political and legislative means, technical measures have to be taken as well to rebuild trust in electronic communications and cloud services. Technical measures aimed at making the Internet and cloud computing more secure and government access more subject to legal scrutiny, also have to take into account the specific requirements that must be met in relation to information that is subject to professional secrecy obligations and legal professional privilege rules, like that between a lawyer and client. In other words, electronic communications and cloud services infrastructures have to guarantee that technical “backdoors” are not abused by governments or by third parties. 6. The task of ensuring that these requirements have been fulfilled should be entrusted to a designated EU institution, which should be able to exercise control and issue opinions in this regard. The CCBE, therefore, urges the EU institutions to create the necessary legal and technological framework in order to remedy the current situation as regards electronic mass surveillance and to safeguard professional secrecy, which is a right of all EU citizens and one of the core values of the legal profession. b. Recommendations regarding the development of e-Justice systems With regard to the e-Justice initiative and electronic court services, in light of recent experience the CCBE would like to highlight the following potential issues. Although they are mostly items that are dealt with at national level, within the context of domestic legal systems and the electronic measures taken to support those systems, the CCBE believes that there is an EU dimension in setting standards and aiming for some degree of approximation of practices, to ensure the smooth operation of future cross-border electronic proceedings: 1. The need for secure electronic court systems that support an "electronic equality of arms" and "access to justice": as one of the key users of electronic court services, lawyers have considerable interest in the nature of the electronic court systems which they may be required to use. The electronic court systems that lawyers are required to use have to enable lawyers to exercise, at least, the full procedural rights that they previously had under paper-based systems. Properly managed, a court system could potentially provide lawyers the possibility to acquire reliable evidence from the system that is usable outside of the court system itself. To use electronic court systems, lawyers have to be capable of acquiring evidence for their acts done within the court system. This means, among other features, the possibility of filing and archiving electronic 8 9 10
  11. 11. documents and related metadata (e.g. delivery date, receipts) in a reliable manner, even after a court might have deleted the original file. This also includes the requirement that electronic court systems should not enforce technical restrictions that effectively prohibit or restrict lawyers and their clients from having access to justice. For example, setting a technical size limit for submitted electronic documents, for the number of attachments or for storage size could effectively restrict the lawyer from using an electronic court system in certain cases, without there being any legal or constitutional basis for such restrictions. Courts could provide technical alternatives for lawyers in special cases, e.g., a special way of transmitting electronic documents that exceed the allowed technical limit. Additionally, there should be a requirement for a minimal functionality that all electronic court systems that includes the technical or legal possibility for a lawyer to arrange a temporary or final substitute in submitting or delivering documents (e.g. when on sick leave, handing over of a running case). As the goal of e-Justice systems is the simplification of court procedures, it should be guaranteed that their use will not affect the general procedural rights of the parties (e.g. the choice of the court). 2. Regarding the costs, shifting of burdens and standardisation of national systems, where different national e-government systems and user interfaces are not fully interoperable, lawyers often have to do the work of different e-government systems manually: for instance, converting documents to or from paper to an electronic format or requesting information from a different authority. This means that a lawyer acts as a human interface between IT systems, in addition to bearing the cost and burden of complying with different systems. This makes it necessary to consult and involve lawyers in the design of new court systems as early as possible, and means that external costs and burdens have to be taken into account when calculating the cost of a new IT system, to avoid the distortion of the usability of such systems. 3. As for the training of lawyers, the CCBE calls attention to the fact that lawyers will require the same amount of training that judges and court employees require to use the new systems. Therefore, the training provided to judges and court employees should also be accessible to lawyers. 1.3. CONTRACT LAW Question 1: What further actions can the European Union take to boost the Internal Market and support economic growth in the areas of civil and commercial law? Initiatives would be welcome in the field of service contracts, which exist in conjunction with other types of contracts such as sales contracts introduced by the proposal for a Common European Sales Law (CESL). The Commission should act in the field of service contracts by using an optional instrument and taking into consideration the work already performed by the European Commission Expert Group on a Common Frame of Reference for Contract Law. Contract law in service contracts should also take into account the Services Directive, as harmonised contract law in this field would certainly improve the prospects of the internal market. 11
  12. 12. To that effect, the distinction maintained in a number of national legal frameworks between a “contrat de service” and “contrat de résultat” should be resolved10. 1.4. FAMILY LAW Question 2: In which area of family law is further progress needed at EU level? How should it be achieved? In the area of family law, cooperation should be reinforced to adequately manage controversies with cross-border aspects. In particular, areas of concern relate to the execution of orders regarding child support and child abduction. Limitations in this area due to Article 81 of the Treaty on the Functioning of the European Union (TFEU) and the right of opposition of national Parliaments should be considered. The enforcement of orders related to maintenance obligations, EC Regulation 4/2009, has made significant progress. Examples include Article 17 (Abolition of exequatur) and Article 18 (Protective measures). There are probably further areas of possible intervention and specification on points b) and c) of the EC Regulation 4/2009, Article 51, paragraph 2 (locating the debtor and obtaining information concerning the income) which constitute problematic issues when one of the two debtors (parent, spouse) moves abroad. In particular, Article 61 of the Regulation provides that, in order to obtain or modify a decision, only information on the debtor’s address may be requested, although in order to make the decision enforceable, information about the debtor’s income and assets may be also required. It is unlikely that an enforceable order can be obtained if the debtor’s income is not, even generally, known. There is, however, precedent from judicial rulings that information on income can be requested to modify an already enforceable order (e.g., in order to modify measures pursuant to article 708 of Italian Civil Code, presidential order in the judgment of separation). In the area of international child abduction, action should be taken to harmonise the criteria for the assessment and evaluation of the child’s interest, in order to avoid, as far as possible, contradictory assessments between State authorities where a child is taken and the competent authorities issue a certificate concerning the return of a child pursuant to articles 11 and 42 of the EC Regulation, Brussels II bis (2201/2003). DISCUSSION PAPER 2: CRIMINAL LAW GENERAL COMMENTS Criminal law practitioners view with considerable concern the continuing low priority given to suspects’ rights in EU initiatives. The genesis can be traced back to the period when, as a counterbalance to the introduction of the European Arrest Warrant (legislated in haste following the atrocities of 9/11), it was proposed to introduce procedural safeguards to protect suspects. After the 2004 Commission Green Paper was rejected, a 2009 alternative strategy was proposed: the Stockholm Programme “Roadmap on Procedural Safeguards”. This approach, while better than a lack of action, nonetheless allowed for rights to be introduced one by one, with considerable delay in their implementation, and in the case of legal aid, being de-coupled from its original position in the roadmap. By comparison, later prosecution-focused measures received greater institutional support, such as the European Investigation Order (nearing completion) and the European Public Prosecutor’s Office proposal. 10 Note: Until a full internal debate on the legal aspects of the proposal for action on service contracts, the United Kingdom Delegation cannot support the CCBE’s call for action on service contracts, either in the direction of harmonised contract law or the use of an optional instrument in this regard. 12
  13. 13. The CCBE would like to draw attention to the following statement made in Discussion Paper 2, “Criminal Law”: “After 10 years it has been possible to unblock the situation related to the EU proposals on procedural rights”. From the perspective of lawyers, and defence practitioners in particular, this is an exaggerated claim. The piecemeal introduction of rights on a delayed basis remains unsatisfactory, and the critical issue of legal aid has not been addressed at all. It is as yet unknown whether Member States will adequately respond to the Commission proposal for a Directive to strengthen the presumption of innocence, published on 27 November 2013. The document further states: “Designing such a coherent criminal law policy will need to be achieved by full recognition of the rights of the victims and respect for the procedural safeguards of suspected and accused persons”. The order in which these two objectives are listed is a cause of concern – the political agenda should not give less attention to the advancement of the rights of vulnerable persons who are suspected or accused. While the provision of legal aid is addressed in the Discussion Paper, it only covers legal aid and compensation for victims – not for suspected and accused persons. While the CCBE is, of course, prepared to support initiatives in the first field, we believe they should not come at the expense of the principle of fair trial. We remind the institutions that a European policy that no longer aspires to the highest standards of fairness in criminal proceedings would contribute to undermining confidence in the rule of law. The CCBE welcomes the publication by the Commission of a package of measures that includes some provision for legal aid in criminal matters (in a directive and recommendations), but regrets that this package was not made available ahead of the Assises de la justice. The event would have benefited greatly from a discussion on these measures. Their length and complexity prevent the CCBE from being able to comment on them in time for the delivery of this paper, although of course we will be contributing our position in due course, when we have had a chance to study the many provisions properly, on both legal aid and the other matters covered by the package. RECOMMENDATIONS Given the increased European competence in the field of criminal law, and increased powers granted to prosecuting authorities there is a risk that vulnerable persons will become even more disadvantaged. Measures must be taken, coterminous with any development of new competences, to ensure that safeguards are put in place for accused or suspected persons. Central among those safeguards is to provide rights to effective legal assistance to all those who fall foul of a criminal investigation. Effective legal assistance is the most practical method of ensuring that a person can actually exercise their legal rights. Thus, where persons cannot afford legal representation, it must be provided for them at the expense of the State. Assuming, therefore, that rights are within the reach of citizens and the implementation for the provision of those rights is not excessively delayed, the answers to the proposed questions are as follows: Question 1: What further development of criminal law at EU level is needed?  The full implementation of the Stockholm programme.  The introduction of a scheme for the consolidation of criminal law measures that would make applicable European Union law readily accessible to citizens. 13
  14. 14.  The introduction of schematic review of the effectiveness of existing measures.  An EU-wide provision of training to ensure that there is training for lawyers equivalent to that routinely provided to judges and prosecutors.  Further strengthening of procedural safeguards throughout the European Union.  Harmonisation of the definitions of crime where those crimes are the subject of European Union measures.  Scrutiny of the implementation of all measures at a national level.  Easy access to information on the rights of victims, plus information for those arrested or accused in each EU country, along with effective information on how and where to obtain legal aid. Question 2: What initiatives at EU level would best strengthen mutual trust between member States?  An enhanced role for the EU Agency for Fundamental Rights.  Provision of adequate free training and resources in criminal law and procedures for lawyers.  Support for cooperation between lawyers who are undertaking criminal defence work.  Urgent delivery on a full, binding Measure C2 of the Procedural Rights Roadmap (legal aid).  Urgent provision of dual representation, legally aided under Measure C1 (access to a lawyer).Urgent action on the Presumption of Innocence green paper.Introduction of minimum evidential safeguards. DISCUSSION PAPER 3: ADMINISTRATIVE LAW AND NATIONAL ADMINISTRATIONS The CCBE reserves its position on administrative law, and hopes to make a contribution in this area in due course. DISCUSSION PAPER 5: FUNDAMENTAL RIGHTS QUESTIONS With regard to the questions posed in the paper, we have the following brief comments: Question 1: What actions at EU and national level are required to increase effectiveness of the rights enshrined in the Charter of Fundamental Rights? The CCBE fully agrees with the importance of ensuring the consistent application of fundamental rights. National courts refer increasingly to the Charter and make more requests for preliminary rulings from the Court of Justice of the European Union. We are aware of the fact that the effectiveness of the rights enshrined in the Charter of Fundamental Rights cannot be reached without involving more reliable stakeholders at national level. We call on the European institutions to ensure that Member States and the EU, when adopting legislation against terrorism and organised crime, comply with their European and international legal obligations to uphold human rights. 14
  15. 15. We also welcome the decision to create new fundamental rights pages on the Commission’s eJustice Portal. Further actions at the EU level should focus on:  The provision of a cadre of competent trained lawyers available to persons with inadequate means at State expense.  Increased resources for the Fundamental Rights Agency (FRA) and increased power by means of a Treaty amendment to ensure its legal basis of analysing fundamental rights issues at the EU level, as well as the enlargement of its mandate and the proper participation of professional organisations in its structure.  Improving the functioning of the General Court so that it operates as a true administrative court for decisions and acts of the EU institutions.  Ensuring the continued application of the principles enshrined in Article 47 of the Charter (right to an effective remedy and to a fair trial), which makes effective access to justice a fundamental right of citizens. Question 2: Should the rights guaranteed in the Charter be directly applicable in the Member States in all cases, by abolishing the limitations of Article 51 of the Charter? On a long term basis, we consider supporting the direct applicability of the fundamental rights by abolishing Article 51 of the Charter. However, that requires a common interpretation in the course of the application. During this transition period, subsidiarity is to be maintained and various tools (training, conferences etc.) should be introduced to achieve a common interpretation. It would not be sensible to have different application of the standards among Member States. 15