by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator

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e-Justice in times of COVID-19 – someone pushed fast-forward?
Follow-up on the eUjust Jean Monnet Module “EU Procedure and credits’ claims: approaching electronic solutions under e-Justice paradigm”

We have already stressed the impact new information and communication technologies (ICT) are able to have on justice administration throughout Europe.

In fact, when Digital Single Market was developed, and interoperability was the method adopted, the EU established the need to pursue the paramount of e-Justice.

Insofar, as derived from the Council’s 2019-2023 Strategy on e-Justice, e-Justice paradigm “aims at improving access to justice in a pan-European context and is developing and integrating information and communication technologies into access to legal information and the working of judicial systems” since “[p]rocedures carried out in a digitised 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” (paragraph 1).

In order to achieve this, the elected method was the one of interoperability, which was firstly recognised in the implementation of e-Government. However, as the time went by, it was elevated to a general principle of EU law, not only relevant on e-Government but also on e-Justice fields (see, on the matter, paragraphs 8 to 11 and 24 of the mentioned e-Justice Strategy), as it was perceived to be the less expensive and the most capable mean to put national digital solutions communicating among each other and to interconnect them to equivalent systems running before EU institutions, bodies and agencies.

In this sense, digital tools for judicial purposes are now being thought to facilitate cross-border justice and to continue to more closely relate national courts and the Court of Justice (respectively, as European functioning and organic courts) in their interactive and synergetic relations.

In fact, EU law deepening and homogeneous application directly relates to preliminary ruling as it allows national judges to maintain a formal dialogue with the Court of Justice on EU law interpretation and/or validity. Furthermore, as EU relies, since the beginning of the integration process, on those fundamental economic freedoms, it needs to have and to provide to its courts means of faster, simpler and more intuitive judicial interaction so cross-border litigation can be dealt in an effective way.

In these domains, major developments have been associated to determined procedures of cross-border credits’ recovery to greatly potentiate Internal Market’s efficiency:

1. Both small claims procedure and European payment order were revised in 2015 so they could accommodate new digital and technological solutions (which became applicable on 2017);

2. Bank account preservation order was also acknowledged as a significant step forward so digital solutions could be seen as added value (also becoming applicable since 2017);

3. Throughout 2018, several instrumental mechanisms – as Regulations on taking of evidence and on service of documents – were subjected to a legislative revision (still on-going) so their solutions could be scalable to this technological revolution;

4. Also Regulation 1215/2012 was revised to better serve ICT potentialities.

On the other hand, there were advancements on the public acknowledgement of digital value in justice domains:

1. e-Justice Portal became a true one-stop shop of information to both judicial operators and citizens;

2. e-CODEX is nowadays perceived as a digital platform able to interconnect national judicial proceedings’ digital solutions in order to overcome detected difficulties on cross-border litigation so judicial integration can be reached in this context;

3. Also e-Curia – a digital application running before the General Court and the Court of Justice – has experienced several improvements over the years, particularly at the end of 2018, when it became possible to present preliminary questions through that application and when its usage became mandatory (in general) to present proceedings before the General Court;

4. The website EUR-Lex (eur-lex.europa.eu) was put in the spotlight by introducing the possibility of accessing, in all the official languages of the EU, the measures on transposing directives adopted by the Member-States.

Taking into consideration these developments and the new e-Justice Action Plan and Strategy adopted by the Council, there was a need to sensitize Portuguese students, judicial operators, political agents and stakeholders through this Jean Monnet Module “eUjust”, as it appeared that Portugal was not completely aware of these novelties: in September 2018, the Council conducted an evaluation of the proposals it would enclose in the e-Justice Action Plan (through it Experts Group on e-Law) and Portugal did not give its feedback.

This setting becomes more relevant when facing a pandemic crisis as it was able to put all of us working from home and relying on digital components that were already in place.

At the same time, it also exposed the need to hastily implement more e-Justice instruments as we are not able to understand how the world will behave during and after this coronavirus and, particularly, how courts will act, interact and make due diligences afterwards.

Despite COVID-19 has been challenging the status quo and demanding answers that were only thought to many years to come, it can also allow a new focus on e-Justice and its repercussions in a short term.

By using the e-Justice Portal, we are able to access a page fully focused on the “Impact of COVID-19 on the justice field”, as “[t]he coronavirus has brought forth a crisis, which does not stop at borders and affects all areas of our life” understanding “European justice is not an exception in this regard”. Since the beginning of the pandemic, this webpage has been frequently updated.

On the “use of digital tools by the judiciary”, the Portal states that “[a] number of Member States have made a move to strengthen the use of digital tools by the judiciary in view of the crisis caused by the coronavirus”. However, when accessing the table of contents of digital tools and measures adopted by the Member States, we find the chart concerning Portugal in blank despite knowing several internal measures were taken through digital tools already in place in order to avoid harming effective judicial protection demands. In this sense, digital platforms continued to be used by judicial operators to serve documents, to present petitions, etc., despite internal legal act (Lei n.º 1-/2020) of March 19 was published, determining, among other measures, the suspension of deadlines and the exceptional application of judicial holiday regime.

These measures were only possible as national procedural system already relied on digitally powered tools which determined justice field was not completely frozen.

However, as the pandemic crisis is perceived as lasting until 2021 (to say the least!), the EU has to hastily make a statement on e-Justice fields by fast-forwarding e-Justice deliverables so they can become a reality as soon as possible.

Concerning EU law homogeneous application, recent increments on e-Curia (allowing national courts to submit their preliminary questions through that online application) can be showcased as quite important in terms of justice efficiency and of keeping the proficient dialogue between national courts and the Court of Justice. In fact, several issues relating EU law interpretation will rise in the future as the pandemic situation opened the door to new and exceptional rules’ adoption. This can lead to the need of seeking further interpretation of undetermined concepts enshrined in EU legislation so they can be perceived through the lens of this pandemic crisis by the Court of Justice. The way to reach this is by resorting to the preliminary ruling process.

For all that have been said, e-Justice aims and goals – thought before coronavirus – gain a renewed disposition e perception, which has to be focused on academic level so, in the aftermath, they can be properly disseminated.

Pictures credits: Play button fast forward by Michael_Hiraeth.