e-Justice paradigm under the new Council’s 2019-2023 Action Plan and Strategy – some notes on effective judicial protection and judicial integration


by Joana Covelo de Abreu, Editor

Information and Communication technology (ICT) and digital tools are shaping the way new solutions are being implemented in EU Procedure and justice, in all European Union. In fact, through the Digital Single Market (DSM) political goal, new technological and digital approaches have been adopted and are now being widespread.

Under DSM’s strategy, e-Justice appeared as a paradigm to be settled using a method: the one of interoperability. But this method was also acknowledged by the 2016 e-Government Action Plan as a general principle of EU law: in fact, alongside elder ones such as transparency or efficiency others were settled, truly built on this new digital approach it is being aimed to be accomplished: the one of interoperability by default, the one of digital by default and the once-only principle. In fact, first approaches to stakeholders revealed the importance of the latter since, in an EU settled and developed around fundamental freedoms, economic agents were able to raise awareness among stakeholders of the need to overcome administrative barriers to similar proceedings in different Member States or before the European institutions. In fact, they were able to devise that they had to provide, for as many times as they initiated a proceeding, the same information and documents, when, in fact, the proceeding was similar, the petition was the same… That determined the emergence of the once-only principle, based on the need of reusing data across the EU. However, to do so stakeholders also understood those public services had to work through interconnected databases and operative systems – otherwise, the reuse of data would come difficult and the once-only principle would never get out of the table of intended measures. That was the perfect setting to bet on digital components, considering the first services to start this digitalisation update were public services.

This led to the emergence of the first paramount to be achieved – the one of e-Government, where the main method to accomplish it was interoperability. This was the adopted concept to legal settings, derived from the informatics semantic, bringing better cross-sector understanding since all legal approaches on the matter would have to be implemented by informatics’ schemes, demanding an interdisciplinary approach. As enshrined in the Decision 2015/2240, responsible for the establishment of a programme on interoperability solutions and common frameworks for European public administrations, businesses and citizens (ISA2 Programme) as a means for modernizing the public sector, interoperability “means the ability of disparate and diverse organizations to interact towards mutually beneficial and agreed common goals, involving the sharing of information and knowledge between the organizations, through the business processes they support, by means of the exchange of data between their respective ICT systems” – Article 2(1). Insofar, its framework will be set on “an agreed approach to interoperability for organizations that wish to work together towards the joint delivery of public services, which, within its scope of applicability, specifies a set of common elements such as vocabulary, concepts, principles, policies, guidelines, recommendations, standards, specifications and practices” – Article 2(2).

In this context, interoperability appeared not only as a method but also as a general principle of EU law – emerging from these new digital perceptions of public services – meant to bring, not only an organisational and technical approach, but also a semantic one, being able, in the short run, to bring an harmonization of the public services’ organisation and functioning all across the EU using identical language, mainly influenced by the use of normalised forms. Furthermore, this method and principle was delivered as the less expensive and more capable to engage diverse solutions already existing in the different Member States. As we had the opportunity of stating in several occasions, we can understand there are two theoretical dimensions of interoperability: 1) an internal dimension which explores the connection between public services and allows them the electronic treatment of data to its digital reuse; and 2) an external dimension which derives from final users’ perspective (citizens and companies) who must also benefit from common interoperable public attendance and interactive forms to present their requests / information / pleas to the competent public service.

All these novelties, if firstly thought to pursue e-Government paramount, rapidly widespread to be used as a referral to judicial areas and, mainly, to link together databases and operative systems already in place in all Member States and between them and the European institutions, namely the ECJ. Digital tools on legal solutions are now being settled to facilitate cross-border justice and to continue to engage both European organic courts (the ones composing the ECJ – the Court of Justice and the General Court) and national courts that, when applying EU law, are acting as functioning ones or common courts of the EU. Main improvements have been noticed on proceedings concerning debt recovery claims to develop market’s efficacy: both small claims procedure (Regulation 861/2007) and European payment order (Regulation 1896/2006) were revised in 2015, by Regulation 2015/2421, to accommodate new digital solutions. These updates are applicable since July 2017. In the same sense, account preservation order (Regulation 655/2014) was also a step where digital solutions are able to accomplish better results and has been applicable since January 2017. Furthermore, during 2018, also instrumental mechanisms – such as the taking of evidence Regulation (Regulation 1206/2001) and service of documents’ Regulation (Regulation 1393/2007) – were addressed by a Commission’s legislative revision proposal to update their solutions to digital setting. As an instrumental Regulation, also Regulation 1215/2012 (on competence, recognition and enforcement of decisions) was adopted, repealing former Regulation 44/2001, to better accommodate IT tools. Looking at these solutions, we are able to understand how internal and external interoperability dimensions are now appearing on e-Justice domains: IT accommodation on instrumental mechanisms was devised to enhance effective judicial protection, namely procedural promptness and to facilitate the right to action and defense rights’ exercise, what directly impacts on services’ interaction and the adoption of new interoperable systems between courts (as e-CODEX will able to do, when it meets the needed leap of becoming more than a Project with promising pilots), allowing us to perceive an internal interoperability dimension.

Notwithstanding, enhancing the use of interactive forms, means of distance communication, entailing the possibility of electronic service, enhancing the use of videoconferencing and relying on already settled and translated dynamic forms to enhance enforcement of decisions are only some internal features of this new digital age at the service of justice’s effectiveness. Furthermore, all these features allow citizens and companies to externally devise interoperability efficacy gains, since they are able to understand, by resorting to the e-Justice portal, which are the competent courts on cross-border litigations, which forms have to be filled to begin the proceedings, what they (and the witnesses they enrol) can expect from those proceedings. They are able to understand how less time-consuming are those proceedings nowadays.

As already mentioned, e-Justice portal is functioning as a true one-stop shop for both practitioners and citizens and e-CODEX is going to be applied to hastily connect national digital procedural solutions to overcome cross-border difficulties. Also e-CURIA – the platform used before the ECJ – met some improvements during 2018 to quickly answer digital transformation demands.

Taking into account such developments, the new e-Justice 2019-2023 Strategy on e-Justice (Council of the European Union, 15th January 2019, 5139/1/19 REV 1) establishes that e-Justice “aims at improving access to justice in a pan-European context and its developing and integrating information and communication technologies into access to legal information and the workings of judicial systems” especially since “[p]rocedures carried out in a digitized manner and electronic communication between those involved in judicial proceedings have become an essential component in the efficient functioning of the judiciary in the Member States”. As acknowledged by this European institution, “[t]he development of electronic tools for e-Justice has been exponential, as they now allow for digital judicial proceedings using secure electronic channels, secure communication between judicial authorities […]”, using as referral the small claims dynamic forms, available on the e-Justice Portal, or the e-CODEX gateways, already being thought as much more than a cross-border project.

But the e-Justice strategy links precisely both e-Justice and e-Government paradigms – as a complementary and synergetic relation, already exposed by us, both settings can benefit from each other advancements; and e-CODEX is mentioned as being able to “provide building blocks” in several fields. As previously anticipated, “[b]y allowing for easier access to information and justice, e-Justice should contribute to the development of the Digital Single Market, which is one of the goals of e-Government” and, therefore, “European e-Justice initiatives should strive for further consistency within the e-Government framework, having regard to the constitutional provisions concerning the judiciary in Member States (judicial independence and separation of powers) […]”.

On the objectives to be accomplished under e-Justice, it “aims at facilitating access to justice and the functioning of judicial systems, including in cross-border cases, for citizens, legal practitioners and authorities, taking into account judicial independence and separation of powers”. In order to achieve them, communications must be simplified and digitised, procedural access must be done, in the first instance, by digital means and judicial interconnections must be set in motion relying on ICT components and mechanisms (e-Communication in the field of justice).

In the 2019-2023 Action Plan (Council of the European Union, 31st October 2018, 11724/4/18 REV 4), same approaches as those made in the e-Justice Strategy are provided for. The first main addressed issue is “Access to information” – specifically thought to “provide general information to citizens, businesses, legal practitioners and judicial authorities, about EU and Member States’ legislation and case law”. For this purpose, both e-Justice and EUR-Lex portals are considered and particularly the latter’s content was updated in order to also address information on how Member States are transposing EU Directives, for instance. However, e-Justice portal is able to be further developed and improved, namely through “a central query tool or extended dynamic functionalities” in order to reinforce its role of a one-stop shop for European e-Justice. Furthermore, it becomes also important to promote registers’ interconnection – e-Justice portal will continue to “serve as single access point for interconnected national registers, relevant to the field of justice”, which will continue to be managed by national authorities or professional bodies but their interconnection / access meets, through the e-Justice portal, a way to transnationally potentiate their results and objectives.

On e-Communication in the field of justice, the e-Justice Action Plan aims at promoting “secure exchange of data”, namely on developing “cross-border electronic proceedings”. In order to do so, “[a] number of preconditions are necessary […] such as an agreement on security conditions of transmission or the ability to trust in the transmitted document”. This could have great impact on instrumental – but vital – realities as creating an electronic mechanism for court fees’ payment. On the same trend, there is also a need to, in a more immediate way, to involve citizens and legal practitioners in electronic judicial proceedings, by resorting to direct communication between them and judicial authorities. There is a need to establish the proper answer to this demand.

On interoperability domains – finally treated as an independent feature –, e-CODEX is perceived as the way to ensure interoperability “between national systems”, but also semantic interoperability is actually acknowledged as a secondary public interest to be achieved.

As prospective domains, e-Justice Action Plan will also address Artificial Intelligence as it “has been identified as one of the major developments in information and communication technologies in recent years and should be further developed in coming years” since “[i]ts implications in the field of e-Justice need to be further defined.

Taking these developments into consideration, it is secure to say that, in the following year of the one ECJ truly deepened effective judicial protection – on both Associação Sindical dos Juízes Portugueses and LM cases – that general principle is also being truly deepened through e-Justice aims and goals.

In fact, all effective judicial dimensions can be met, in a fast lane, through e-Justice paradigm – as already stated e-Justice main goal is to promote and ease access to justice, especially on cross-border litigations. In fact, digital approaches have the virtuosity of providing better ways (and less expensive ones) to present a claim (right to action), to question a claim (defense rights), to know which independent courts/jurisdictional organs are available (right to an independent court). It also allows justice efficacy and, furthermore, allows citizens and companies to understand how much they are going to pay for justice fees in other Member States and if they are eligible to benefit of economic support in justice matters.

Since these approaches are being, in a first scenario, addressed in cross-border litigations, and main efforts are being promoted and are impacting on judicial cooperation matters (Article 81 of the TFEU), there is also time to acknowledge, at least doctrinally, a new semantic approach to this issue – the one of judicial integration. In fact, the “cooperation” expression is still very connected to the intergovernmental setting that, since the Treaty of Lisbon, is, no longer, the main reality. As the EU is a complete new political and legal scheme, it is important to reach new semantic, more consistent to its stage of integration.

Therefore, we understand these new e-Justice goals make more prominent the need to adopt new semantic – the e-Justice Action Plan and Strategy also acknowledged it – and the way to further and more efficient judicial protection is, in these domains, through a new “brand” of judicial integration.

Pictures credits: Processador… by ColiN00B.

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