La contribution du CCBE aux Assises de la Justice organisées par la Commission UE

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 : ccbe@ccbe.eu – www.ccbe.eu
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
http://ec.europa.eu/justice/events/assises-justice-2013/discussion_papers_en.htm
1

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. 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: http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_21_01_11_CCBE_res1_1295876812.pdf
French: http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/FR_21_01_11_CCBE_res2_1295876812.pdf
3

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. 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
http://ec.europa.eu/justice/effective-justice/files/cepej_study_justice_scoreboard_en.pdf
4
http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2012/Rapport_en.pdf
5

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. 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. 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: http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_Legal_Aid_recomme1_1291033916.pdf
French: http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/FR_Legal_Aid_recomme2_1291033916.pdf
6
See CCBE Statement on mass electronic surveillance by government bodies, October 2013,
http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_14142013_CCBE_Sta1_1382086457.pdf
8

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
http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/07092012_EN_CCBE_Pos1_1361196843.pdf
9

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
http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf
9
http://www.assembly.coe.int/Communication/pressajdoc25_2013.pdf
10

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. 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. 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. 
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. 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