ACCESS TO JUSTICE
Draft Council Directive to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid and other financial aspects of legal proceedings.
|Legal base:||Article 61(c) EC; consultation; unanimity
|Document originated:||18 January 2002
|Forwarded to the Council:||21 January 2002
|Deposited in Parliament:||14 February 2002
|Department:||Lord Chancellor's Department
|Basis of consideration:||EM of 22 February 2002
|Previous Committee Report:||None
|To be discussed in Council:||No date fixed
|Committee's assessment:||Legally and politically important
|Committee's decision:||Not cleared; further information requested
10.1 The European Council agreed at Tampere in October
1999 to establish minimum standards ensuring an adequate level
of legal aid in cross-border civil cases throughout the European
Union. In May 2000 the Commission published a Green Paper on legal
aid in civil matters, and the present proposal for a Directive
reflects responses to that Green Paper.
10.2 The Council of Europe and the Hague Conference on
Private International Law have adopted conventions in this area
(see the 1977 Strasbourg Agreement on the Transmission of Legal
Aid Applications, and the 1980 Hague Convention on International
Access to Justice), but these have not been ratified by all Member
States. The 1977
Strasbourg Agreement provides that applications for legal aid
may be made in the home State, for the purposes of legal proceedings
in another State, but the conditions of eligibility remain those
of the State where the proceedings are to be brought. The 1980
Hague Convention requires nationals and persons resident in another
Contracting State to be treated for the purposes of entitlement
to legal aid in a Contracting State as if they were nationals
of or resident in that Contracting State. Neither instrument provides
for any minimum standards of eligibility for legal aid.
The proposed Directive
10.3 Article 1 of the draft Directive indicates that
its purpose is to improve access to justice in cross-border disputes
by establishing minimum common rules relating to legal aid and
other financial aspects of civil proceedings. It also states that
the Directive is to apply to "civil disputes of all types,
irrespective of the type of court". Further definitions are
provided by Article 2 where "litigation in civil matters"
is defined as "all litigation in matters of civil law, including
commercial law, employment law and consumer protection law".
10.4 The right to legal aid is set out in Article 3.
Accordingly all persons involved in a civil dispute, as either
claimant or defendant, shall be entitled to receive "appropriate
legal aid if they do not have sufficient resources". Legal
aid is to include the services of a lawyer, or of any other person
entitled to represent a party in court, providing advice and representation,
as well as exemption from, or assistance with, the cost of proceedings.
Member States are to be free to provide for reimbursement by the
aided party if his financial status "has substantially improved
10.5 The basic right to legal aid conferred by Article
3 is subject to the conditions of Articles 13 and 14. Under Article
13, Member States may define income thresholds above which applicants
are to be presumed to be able to bear the costs associated with
disputes. Applicants whose income exceeds such thresholds must
nevertheless be granted legal aid if they can prove they are unable
to pay the costs of proceedings, "in particular as a result
of differences in the cost of living between the Member State
of residence and of the forum". It is further provided that
applicants shall be presumed to be able to bear the costs of proceedings
if they "enjoy actual access to a private mechanism involving
a no-win no-fee agreement with the lawyer and providing that court
costs will be paid by a third party". Article 14 provides
that legal aid applications may be rejected for actions "which
appear to be manifestly unfounded".
10.6 Article 4 provides for legal aid to be granted by
the Member State before whose court the proceedings are instituted.
By virtue of Article 5 such legal aid is also to cover the costs
directly related to the cross-border nature of the dispute, such
as interpretation, translation and travel costs. The Member State
in which the applicant resides is to grant legal aid to cover
costs incurred by the recipient in that State, including in particular
the costs of consulting a local lawyer. By virtue of Article 6,
legal aid is to be granted without discrimination to Union citizens
and third country nationals residing lawfully in a Member State.
10.7 Articles 8 and 9 concern the processing and transmission
of applications. The intention is that the provisions of the Directive
should replace the 1977 Strasbourg Agreement in relations between
Member States. Article 11 provides for a standard form for applications
to be drawn up by the Commission assisted by the Committee established
by Council Regulation No 1348/2000 on the service in the Member
States of judicial and extra-judicial documents in civil and commercial
10.8 Article 15 makes specific provision for legal aid
to be granted to "not-for-profit" legal persons based
in a Member State where proceedings are "designed to protect
legally-recognised general interests" and the legal persons
do not have sufficient resources to bear the costs of proceedings.
10.9 Article 17 requires Member States to provide that
the winning party shall be entitled to "fair reimbursement"
from the losing party of all or part of the costs of proceedings.
Member States may provide for exceptions to this principle "to
ensure appropriate protection of weaker parties". The Commission's
Explanatory Memorandum makes it clear that this is intended to
be a general rule applying to all civil proceedings, whether or
not legal aid has been awarded. (It would also seem to apply whether
or not the proceedings have any cross-border element).
In cases where legal aid has been awarded, Member States may provide
that reimbursement is not due or "is dealt with by the State"
where the losing party is legally-aided.
The Government's view
10.10 In her Explanatory Memorandum of 22 February, the
Parliamentary Secretary at the Lord Chancellor's Department (Baroness
Scotland) explains that the Government is of the view that establishing
minimum standards ensuring an adequate level of legal aid in cross-border
cases can best be achieved at the European level and would comply
with the principle of subsidiarity. The Minister adds that the
Government is also considering whether the effect of the proposal
as currently drafted goes too far in prescribing where legal aid
should and should not be given in domestic cases.
10.11 On the policy implications of the proposal, the
Minister comments as follows:
"The Government supports action at European level to promote
access to justice across European borders, and supports measures
to deal with the particular problems of the cross-border litigant.
However, the Government will wish to examine carefully the effect
of the Commission's proposal as currently drafted in three main
areas: the merits test, the scope of the proposal (i.e. the categories
of cases for which legal aid would have to be made available),
and the operation of the proposals concerning financial eligibility
10.12 The Minister further explains that the Government
is assessing the costs and benefits of the proposal as currently
drafted, that it will be exploring the extent to which amendments
might be agreed and that these questions will be the key factors
in deciding whether or not to opt in to this measure.
10.13 We recognise that this proposal is at an early
stage, and that it may be amended significantly. Nevertheless,
we have a number of concerns.
10.14 First, we ask the Minister what view she takes
of the reference to "Union citizens" in Article 6 and
of the apparent extension of the rights attaching to such citizenship,
and if she agrees that the reference ought more correctly to be
to "nationals of other Member States".
10.15 Secondly, the scope of Article 15 is not expressed
at all clearly. In particular, no guidance is given as to what
is meant by "legally- recognised general interests".
We ask the Minister if she agrees that public funds, in the form
of legal aid, should be made available to the legal persons concerned.
10.16 Thirdly, we have concerns over Article 17, which
appears to introduce a general rule relating to the costs of civil
proceedings, requiring a "fair reimbursement" from the
losing party regardless of whether legal aid has been granted.
There seems to us to be no justification for limiting the discretion
of the national courts to make no order for costs, and we ask
the Minister if she agrees.
10.17 Our other concern with Article 17 is that it
does not appear to be limited to cases having cross-border implications.
If it is not so limited, it is not properly based on Article 65
EC, and should be deleted from the proposal. Again, we ask the
Minister if she agrees.
10.18 We shall hold the document under scrutiny pending
the Minister's reply.
1977 Strasbourg Agreement has been ratified by all Member States
except Germany and the Netherlands. The 1980 Hague Convention
has been ratified by nine EU Member States: Finland, France, Germany,
Greece, Italy, Luxembourg, Netherlands, Spain and Sweden. Back
would appear to exclude litigation before administrative courts,
or, in England and Wales, proceedings by way of judicial review.
The Commission Explanatory Memorandum remarks that disputes concerning
administrative law do not fall within the scope of Article 61
EC, on which this proposal is based. Back
Commission Explanatory Memorandum indicates that 'costs' in this
sense are confined to court costs and do not include other costs
connected with the dispute. Back
Commission indicates that the proposal does not refer to concepts
such as 'reasonable prospects of success', since this 'would introduce
a subjective element whereby the analysis of the legal aid application
would become a kind of 'pre-judgment'.' Back
No L160, 30.6.2000, p.37. Back
this is the case, Article 65 EC does not appear to provide an
adequate legal base, since it is limited to judicial cooperation
in civil matters 'having cross-border implications'. Back