Abstract and Keywords
This chapter analyses the legislative history, main substantive content, and normative implications of Decision (EC) No 470/2001 establishing a European Judicial Network. The ‘EJN’ has established an information system for the public covering the policy area. In addition, its members, the national contact points, meet regularly in order to facilitate judicial cooperation between the Member States. These functions as well as the Commission Report on the functioning of the Network are outlined. The EJN is further analysed as a completely novel regulatory structure in the field of judicial cooperation. It is argued that the EJN has the potential to contribute to the convergence of the policy area. The chapter however also highlights the challenge of openness and participation for the network, and concludes that the EJN has yet to reach its potential of creating horizontal dialogue between the relevant actors.
The initial political documents in the process of moving towards implementation of the Area of Freedom, Security, and Justice mooted the idea or concept of a judicial network. First among these was the Action Plan which stated that one of the aims was to examine the possibility of extending the concept of a European Judicial Network in criminal matters to embrace civil and commercial proceedings.1 The Tampere European Council conclusions also included a recommendation that an easily accessible information system be established, maintained, and updated to provide information to the public on the European area of justice.2 These policy documents raised for the first time the issue of an inherent access to justice, a matter which the Council of Europe had in 1981 placed first among the principles established in a recommendation for access to justice at the national level, namely that of the availability of information to the public.3 The Commission subsequently acted upon these two political proposals.
Initially, the Commission included the proposed European Judicial Network (‘the Network’ or EJN) in its communication reviewing progress on the creation of the Area of Freedom, Security, and Justice.4 Thereafter, the Commission presented the proposal for a Council Decision to establish the Network.5 Subsequently, the Report of the European Parliament6 and (p.234) the Opinion of the Economic and Social Committee (ESC)7 were published, after which the Commission's amended proposal was adopted by Decision of the Council.8
The objective of the Network stems from the single market and the four freedoms, with the ensuing substantial expansion of cross-border civil and commercial exchanges. As the Commission argues in its explanatory memorandum, the expansion ‘raises more and more acutely the question of how members of the general public and firms are to exercise their rights in a cross-border context’.9 The objective of the Network is therefore to ensure the sound operation of judicial procedures in cross-border matters by improving judicial cooperation mechanisms between the Member States. According to the Commission the ultimate goal is to simplify the life of citizens facing cross-border litigation and improve access to justice.10 In particular, the Commission wants to offer added value for litigants and promote access to justice by providing an information system, which is maintained by the Network.11
According to the Commission, the proposal is justified by the inherent ‘cross-border’ element which necessitates action at the Community level. Furthermore, the Commission considers that the existing bilateral, multilateral, and international arrangements for judicial cooperation mechanisms do not hinder Community action, which is taken without prejudice to these. On the contrary the Commission envisages a role for the Network in areas not covered by the existing arrangements and also a role of supporting the existing mechanisms, e.g. by identifying best practices and disseminating knowledge of these.12 In addition, the Commission has high hopes for the Network, which it expects to develop into an essential instrument that permits an integrated approach and serves as a forum for discussion and monitoring, as well as fosters development of practical initiatives.13
The application of the Network does not cover the entire Union. In accordance with the protocols of Denmark, UK, and Ireland to the Treaty of Amsterdam, Denmark will not participate in the Network whereas the UK and Ireland are participating.14 However, in substantive application the Network is very broad in that there is no definition of ‘civil and commercial’, and specifically the Commission states that the intention is to avoid ‘compartmentalization’.15 Therefore, it is possible to envisage the application of the Network's cooperation and information mechanisms in a broad range of legal matters, including family, employment, and consumer law matters, apart from the obvious contract law, and other commercial law matters.
The vision and intention is that the Network should have two distinct practical functions or tasks. The first function is to assist or be the facilitating go-between in judicial cooperation between the Member States in civil and commercial matters. The second function is to establish and maintain an information system for the public.16 The Network must consist of members or participants in order to function at all and to fulfil its goals, and is hence formed by several categories of member. Most relevant of these members, considered to be the ‘cornerstones’ of the Network, are the central contact points, one designated by each Member State.17 There is no precise definition of the professional make-up of the national contact points or of how they operate within that national system. Due to their obligations and tasks one would assume that the contact points will be civil servants within a relevant national ministry or other administrative body, in some cases within the court system. The Decision itself refers to the contact points also by using the terminology ‘authorities’. Other members of the Network fall into the following categories: (1) authorities provided for in other instruments of judicial cooperation in civil and commercial matters; (2) liaison magistrates working in the criminal network when they have responsibilities in civil or commercial matters; and (3) any other appropriate judicial or administrative authority whose membership is considered useful by the Member (p.236) State to which it belongs.18 The Member States were obliged to notify the Commission by June 2002 of the names and contact details of the national contact points as well as their communication facilities and knowledge of languages.19
In order for the Network to achieve its first function, i.e. to facilitate judicial cooperation, the contact points are obliged to provide any necessary information, to facilitate the processing of requests, and to seek solutions to any difficulties that arise.20 However, since information about the designated contact points is not made public it appears that they are therefore not to be directly approached by litigants. Rather, liaison in practice presumably takes place between contact points themselves once they have been alerted to concrete problems within their national systems. The exact role and operational format of contact points within each Member State are not regulated, but one might envisage them as having a kind of monitoring and support function. This may be deduced from the Decision, which states that the contact points shall be at the disposal of local judicial actors and other authorities, thus emphasizing the support function.21 This presumed interchange between contact points and their monitoring of national systems is further supported by the Decision itself, which obliges the collegiate body of contact points to meet at least once every six months to exchange experiences and identify problems and best practices.22 Furthermore, the additional Network members are also according to the Decision supposed to participate in meetings, which the Commission will convene when appropriate. The meetings are intended to provide a platform for discussion and the exchange of experiences, but can also be held on specific issues.23 In addition, the Decision stipulates that a secure and limited-access electronic information exchange system should be established for dissemination of information between members of the Network.24
In order for the Network to achieve its second function, i.e. to establish and maintain an information system for the public, the contact points are obliged to assist with the preparation and updating of the system. The Decision specifies that this shall take place through the completion and (p.237) updating of practical and concise information sheets.25 The contact points are obliged to draw up guidelines for progressively establishing these information sheets, but the Decision specifies that at least the following subjects should be covered: principles of the legal system, judicial organization, procedures for initiating court claims including small claims and appeals, legal aid, service of documents, enforcement of judgments, interim relief and seizure of assets, alternative dispute resolution possibilities, and operation of the legal profession.26 With regard to the information system, the Decision further stipulates that the system should be Internet based and comprise the following categories: Community instruments, national measures, and international instruments in force. The website should also make links to other sites, in particular those where the original information is to be found.27 The information is to be updated regularly, even though no definite updating deadlines are stipulated, and the contact points are responsible for the accuracy of the information provided.28
Notwithstanding the central role of the contact points in the Network, it is notable that the Commission also plays a major role. With regard to the first function of the Network the Commission shall in close cooperation with the Council organize the meetings of the Network. Specifically, the Commission is the convener of meetings, and is also obliged to chair meetings and provide secretarial services. The Commission is further given the task of preparing the agenda for meetings and preparing a report after each meeting.29 With regard to the second function the Commission is responsible for managing the information system. The Decision envisages that this includes: constructing the website, providing Community law information, and progressively translating and installing information on the website.
The Commission sees the establishment and development of the Network as a gradual process and states that the Network is to be flexible and open to evolution.30 The Decision contains a review clause, which obliges the Commission to produce evaluation reports every five years, commencing in 2005.31 In particular the decision specifies that the report shall consider among other matters the question of public access to the contact points, (p.238) access to and the involvement of the legal profession in Network activities, and synergies with the Network for the extrajudicial settlement of consumer disputes.32 The first report was published in 2006 and the information provided therein and the Commission's further suggestions are analysed below.
The Network is a completely novel structure, and does not as such abrogate the existing structures of any legal instruments. However, it is noteworthy that the Network is one of the measures of judicial cooperation in civil matters most visibly influenced by the thinking developed in the field of criminal judicial cooperation has.33 It seems that the Judicial Network in criminal matters34 in its setting up and its success was a forerunner to and served as a model for the Network.35 It is also noteworthy that another potential influence on the Network was the White Paper on Governance, which was published shortly after the Commission's proposal for the Network. It is plausible that the Commission was influenced by the highly topical new governance mechanisms and regulatory techniques, including the concept of networks, when envisaging proposed new measures in the area of civil and commercial matters. The Decision to create the Network has been applicable since 1 December 2002, even though the contact points had been designated prior to the entry into force of the Network.36
Initial Conclusions on the Impact and Effect of the Network
The Network may be seen as an inherently natural, supporting structure with the potential to contribute to a change in legal thinking and to (p.239) the acquisition of sufficient knowledge by the relevant actors.37 And as an objective of the Network is the creation of a flexible and non-bureaucratic tool, it is clear that it is expected to support the mutual recognition programme.38 However, before the publication of the Commission's follow-up report there was no verifiable measure of the practical efficacy of the Network, i.e. whether it had indeed solved practical problems between its members and thus contributed to smoother transnational cooperation.39
Apart from the practical effects of the Network it is relevant to analyse also some pervading theoretical issues arising from the existence and intended function of the Network, in particular to evaluate it as a holistic structure for the whole policy area. At the institutional level it is pertinent to consider the consequences of the Network's decentralized approach. One commentator notes that the idea that institutionalization is only associated with the development of supranational rules perhaps rests on its own self-reinforcing path dependency. He continues his argument by claiming that even new forms of governance, which do not conform to the classic Community method, have led to a Europeanization of policy and an institutional shift through new discourses and forums.40 This is a particularly interesting observation when applied to the Network, because without much previous Community procedural regulation in civil and commercial matters, a new highly organized forum and discourse are created through the Network. Thus, notwithstanding decentralization, there is actually an institutional shift from the purely national to the supranational level.
In addition, policy coordination through the Network has potential as a tool for Europeanizing or converging policy rather than fostering diversity. Hence one can even say that the diversity of national systems offers an institutional explanation for the emergence of the Network and it also conditions domestic adaptation under the system.41 However, even though there is ample room for national contextualization, there are several incentives for convergence in a process which creates trust and cooperative orientations (p.240) among participants and encourages learning dynamics.42 In addition to the supranational and converging elements, the Network includes a potential for centralization in the central role accorded to the Commission. This can be seen in the explanatory memorandum to the proposal, in which the Commission emphasizes its own role in the Network and even obliges the national contact points to cooperate and coordinate closely with the Commission.43 Also, the limited membership of the Network, and the fact that most participants can be seen as civil servants with the requisite technical expertise, resemble the centralization features of the comitology system.44 Thus, the tentative vision of the Network as new governance in procedural law has to be modified by what is in essence an alternative picture of the Network as ‘old’ governance, as a centralized bureaucracy with ensuing Europeanization.
In terms of practical administration, it is pertinent to consider whether the Network will manage its two functions efficiently. There is first a concern that it will not achieve coherence and transparency. It is a further co-operation structure separate from the existing structures, which are not supposed to be prejudiced by it.45 Therefore, it is not clear what further facilitative assistance the Network contact points can offer, bearing in mind that the existing cooperation structures may have been in place for a considerable time and might have very specific procedures. If the Network contact points instead are to promote coordination of the existing mechanisms and uniformity, it is difficult to see how this can be done without affecting existing mechanisms and without undermining the Member States’ own powers in the implementation of the existing mechanisms.46 Such process of coordination would underline the point above that the Network is Europeanizing procedures from above instead of ostensibly fostering diversity.
Secondly, there is a concern that the Network's facilitative task will be difficult and not constructive. National procedures are closely linked to national legal cultures; they are also highly technical and form a system, (p.241) whereby each particular part of the procedure, even judicial co-operation mechanisms, fits and links into the procedural system as a whole. Therefore, identifying best practices, seeking solutions to problems that arise, and exchanging experiences at Network level demand an in-depth knowledge of the procedural systems and a genuine comparative understanding if the results are to be constructive. Notwithstanding the existence of a genuine comparative understanding, it might be difficult to find mutual solutions due to the particular linkages and technicalities of each unharmonized procedural system. An analogy can be made drawing on Scharpf's critique of the White Paper on Governance in relation to economic governance: successful market integration has led to a need for a mutual judicial space but perhaps also exposes the fundamental asymmetries between the legal systems with the resultant difficulty in finding effective European solutions.47
Thirdly, the fact that the cooperation is created at the civil service level, perhaps including some judges in the category of any other appropriate authority, does not necessarily foster a genuine area of justice in which national courts, judges, and professionals are the practical participants. Horizontal dialogue between the national courts is important for the reception of EU law and would be particularly important when the matter concerns assistance between Member States in civil and commercial matters, because the assistance itself is given by national courts and national judges.48 Disappointingly, the Network does not create a direct link between national courts at any level of the court structure or judiciary, and does not therefore match the hopes of the commentators.49 Similarly, if one considers some of the other probable stakeholders, i.e. the legal profession and the parties themselves, it is clear that potential groups in civil society, such as organizations representing consumers or small and medium-sized enterprises (SMEs) who could be interested in mitigating obstacles to cross-border civil litigation, are not provided with a role or consulted.50 Thus, the actors involved are mostly on the same horizontal level and are a closed group.
Finally, the attempt to promote access to justice and provide information to citizens through the Network's website can be seen as a successful tool, but one which might however have only a limited effect. The ESC notes that not all potential litigants have access to the Internet, and the percentage of (p.242) the population with an Internet connection in the Member States differs.51 Furthermore, the litigants will in any event have to obtain more information than is provided on the Internet, and specific advice in relation to their particular case. Hence, one cannot yet see the information service as a complete Community public legal service, which is accessible and free of charge for everybody.52
The Commission Report
The Report published by the Commission on the Network's first three years underscores some of the issues raised and encourages a debate about the future of the Network.53 Of all the measures in the area of judicial cooperation in civil matters the Network stands out as a structure with the widest substantive span, possibly dealing with the full range of issues such as service, evidence, and legal aid. The Network also stands out because it has a broader reach, practically involving all the national actors in one project thereby creating a Community-wide interface for the actors involved. Therefore, despite the issues that have emerged the Network has the potential to be a valuable tool for the policy area. The Commission also sees the Network as a supporting structure with potential for the future consolidation of the judicial space in Europe. This view can be seen in its Communication on the future orientations of the policy area, in which emphasis is given to the important role of the Network in the crucial functioning and implementation of the Community legislation that has been adopted in the field.54
In relation to the first task the Network held its inaugural meeting on 4 December 2002.55 From the Commission's Report it is also known that the Network held four annual meetings of its contact points in 2003 and 2004 and five meetings in 2005.56 In addition the Network has organized (p.243) an annual meeting each year for all of its four categories of members.57 The focus of the Network during its first years has apparently been its information website as well as the development of the Network's future structure and functioning.58 Thus, one can perhaps say that the Network, apart from the very concrete task of providing the information site, has been trying to find its role and create synergies. The initial meetings, tasks, and discussions within the Network have undoubtedly been important in creating personal contacts and mutual trust between its members, which together with their goodwill is the basis for the functioning of the Network.
There is no official information at present on whether the Network has been successful in facilitating cross-border judicial cooperation through the intranet specifically created for this purpose. However, the Commission's Report does tell us that a rudimentary initial reporting system logged 363 such requests for 2003 and 2004 involving seven Member States contacted by 15 Member States; it appears that these figures do not represent the total. Since then, with the objective of obtaining more exhaustive statistics, the Commission has created an online register. Notwithstanding the fact that not all cases were included in these numbers, and bearing in mind that the Network is only an additional tool where there are problems and cooperation mechanisms that need further support, the number of matters is relatively low. Therefore, it is suggested that the Network needs to be better known amongst and have clearer channels to its current primary users, the national judges and the designated national central authorities for specific judicial cooperation issues.59 Ultimately this of course depends on the national systems and practices. The Report does nevertheless note that in the cases logged the Network was able to reduce delay in the handling of the matter and was able to assist in solving the cooperation exchange, thereby fulfilling its task of additional simplification and facilitation.60
In relation to the second task, the website providing the information system was launched in March 2003, offering a wealth of information about the legal systems of the Member States as well as about the relevant international (p.244) institutions and bodies.61 Today the Network has therefore over 10,000 web pages covering 19 main themes for each of the 27 Member States in 22 different languages.62 Between July and September 2005 there were on average 100,000 monthly visits to the site, and in 2003 the European Information Association awarded a prize to the Network for its website. In addition to the website an information campaign has been launched to create awareness of the direct impact that judicial cooperation in civil matters has on citizens and enterprises and to create awareness of the Network.63 Furthermore, the Commission has together with the Network and national experts produced practical brochures called Practice Guides for two legislative measures in the realm of judicial cooperation in civil matters.64
Thus, the Network has endeavoured to facilitate access to justice through the tool of access to information. It has been considered as giving high-quality information via an accessible and user-friendly site that would not otherwise be available to citizens without great effort through more cumbersome channels.65 For the future, the Commission considers that the pedagogical role of the Network could be further developed, e.g. by creating online discussion groups around specific judicial cooperation topics and acting as a ‘forum of debate’ for practical application problems, thereby facilitating exchanges on best practices.66
The Report furthermore deals with future challenges to the Network and notes that one crucial question is opening access to the Network both to legal practitioners and to the public in general and citizens needing help and information. Thus, the Commission has addressed the Network's participatory deficiency and lack of openness, which were recognized in the review clause of the Decision itself, and which form one of the significant critiques of the Network. There are two potential ways of opening up the Network, corresponding to (p.245) the parallel functions of facilitating cooperation and providing information. The first of these is to let other parties participate in the annual meetings and have access to knowledge about these meetings and about the accrued experience and functioning of judicial cooperation between the contact points. This approach would appear to be most suitable for fulfilling the need of the Network to engage and interact with the legal profession, including bailiffs, lawyers, and notaries. A specific mandate in the Hague Programme is to establish cooperation between legal professionals and organize Europe-wide conferences. Hence, the Commission proposes as a first step that the Network could create a ‘privileged partnership’ for the legal profession, where representatives could attend Network meetings and representatives of the legal profession would have access to the national contact points in particular cases.67
The second approach to opening up the Network is to provide public access to the contact points for anybody. This would suit the broader public and the increasing number of citizens who find themselves faced with cross-border legal problems. This option is perhaps more controversial in that the resources of the contact points, and their position within national administrations, might not allow them essentially to become free legal advice or information clinics. However, it has been argued that the Network must develop the information side of its function and move beyond the ‘faceless’ website. The Commission therefore proposes that an online communication system might be established, using the precedent and methods established through the alternative dispute resolution networks for consumers, SOLVIT and EEJNET.68
In conclusion, the first potential development of the Network is for the group of actors presently involved in it to expand it through learning and new initiatives into a general coordinating structure for civil procedural regulation. The second potential development is for it to encourage more participation by stakeholders. Were the Network to fulfil its potential in these two ways, it would become a real tool for building a genuine European area of justice. It would become the interface in which judges, professionals, and interest groups for litigators would learn about, develop, and facilitate cross-border and European procedures.
(1) Action Plan, OJ C-19, 23.1.1999, p. 1, para. 40(d).
(2) Presidency Conclusions, No. 200/1/99, para. 29.
(3) Council of Europe, Recommendation No. R (81)7, pp. 6 and 12f.
(4) COM (2000) 167.
(5) COM (2000) 592.
(6) A5 91/2001.
(7) ESC 227/2001.
(8) Amended proposal, COM (2001) 234, and (EC) No. 470/2001 Council Decision of 28 May 2001 establishing a European Judicial Network in civil and commercial matters, OJ L-174, 27.6.2001, p. 25.
(9) COM (2000) 592, p. 3.
(14) Recitals 18 and 19.
(15) COM (2000) 592, p. 5.
(18) Art. 2.
(19) Arts 2(5) and 20.
(20) Art. 5(2).
(21) Art. 5(1).
(22) Arts 9 and 10.
(23) Arts 11 and 12.
(24) Art. 13.
(25) Arts 5 and 15.
(26) Arts 5 and 15.
(27) Art. 14.
(28) Arts 16 and 18.
(29) Arts 11 and 12.
(30) COM (2000) 592, p. 7f.
(31) Art. 19.1.
(32) Art. 19.2.
(33) Kennett (2000) p. 53.
(34) Established by Joint Action 98/428JAI.
(35) A5 91/2001, p. 12. There has also been some influence from the criminal field in the judicial training, cooperation, and funding structures. Therefore, the overarching measures in particular are perhaps the first to remind us of such a link, which in many national systems is stronger and natural. Because these are general measures there is a possibility that these tentative and initial influences and links might grow stronger in the future and affect the whole policy area.
(36) Art. 21.
(37) Hess (2003) p. 227.
(38) Tenreiro and Seoane (2003) p. 468.
(39) Hess (2003) p. 228.
(40) Armstrong (2003) p. 172f. makes this argument in relation to the ‘open method of coordination’, a new mechanism of Community political and legal interaction in the fields of employment and social law. The same argument can be used by analogy in the context of judicial cooperation in civil matters.
(42) Ferrera, Matsaganis, and Sacchi (2002) p. 227 make this argument in relation to the open method of coordination. Again an analogy can be drawn to the context under discussion.
(43) COM (2000) 592, p. 8.
(44) Craig and De Búrca (1998) p. 138ff., inter alia, provide an explanation of comitology or the committee system. See further Azoulay (2002) p. 125f. for a view on its role in the regulatory system of the EU.
(45) Structures in place to achieve these aims include initiatives within the Hague Conference on Private International Law, the Council of Europe, and the EU itself, as well as bilateral or multilateral treaties amongst and between the Member States.
(46) ESC 227/2001, p. 6f.
(47) Scharpf (2001) p. 3f.
(48) See inter alia Slaughter, Stone Sweet, and Weiler (2001) p. xiif., and Edward (2004) p. 2f.
(49) Inter alia Paulino Pereira (2001a) p. 48. However, there is of course potential that this might take place in the framework of the judicial training initiative.
(50) ESC 27/2001, p. 8f.
(53) COM (2006) 203, p. 7ff.
(54) COM (2004) 401, p. 11.
(55) COM (2003) 291, p. 39.
(56) COM (2006) 203, p. 1f. The Report, under heading 2.1, confirms that in 2005 there were 93 contact points in total. Most Member States have designated between two and five contact points whereas the countries which have created subdivisions of the Network might have even more contact points. In its Report the Commission is concerned that some of the contact points are combining their tasks with other functions (e.g. being the central authority for matters of judicial cooperation) and wishes that each Member State would designate at least one full-time contact point.
(57) Ibid. p. 1. According to the Commission there are in total 424 members of the Network. Since 93 of these are national contact points, the other 331 fall into the additional categories: (1) authorities provided for in other instruments of judicial cooperation (159); (2) liaison magistrates in the criminal network (13); and (3) any other appropriate judicial or administrative authority (159).
(58) COM (2006) 203, p. 3f.
(62) The Commission is responsible for the coherence and translation of the information together with the practical running of the website, which is a formidable task. In accordance with the Decision the contact points are responsible for the national information provided for the website.
(63) COM (2003) 291, p. 9. See also COM (2006) 203 p. 5.
(64) The Practice Guides currently published are for the Brussels II Regulation (which as a measure falls outside the scope of this work) and the Evidence Regulation. These Guides are also available on the Network's website.
(65) COM (2006) 203, p. 7. However, it should be noted that some Member States are slow to provide information to the website or to update it. Translation has become a major issue since the 2004 enlargement and not all web pages are yet available in all languages.
(66) COM (2006) 203, p. 10.
(67) COM (2006) 203, pp. 7f. and 10. It appears that there are different views in the Member States about this proposal, with some being concerned that the legal profession could abuse access to the contact points in matters which are within their own remit. However, some Member States already allow access to the contact points by legal professionals and encourage their participation.