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Wednesday, 25 September 2002 - Strasbourg Final edition
Access to justice *
P5_TA(2002)0441A5-0312/2002

European Parliament legislative resolution on the proposal for a 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 civil proceedings (COM(2002) 13 – C5-0049/2002 – 2002/0020(CNS))

(Consultation procedure)

The European Parliament ,

–   having regard to the Commission proposal to the Council (COM(2002) 13(1) ),

–   having regard to Article 61(c) of the EC Treaty,

–   having been consulted by the Council pursuant to Article 67 of the EC Treaty (C5-0049/2002),

–   having regard to the revised version of the Council directive (10856/2002 – C5-0423/2002),

–   having regard to Rules 67 and 61(4) of its Rules of Procedure,

–   having regard to the opinion of the Committee on Legal Affairs and the Internal Market on the proposed legal basis,

–   having regard to the report of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs and the opinion of the Committee on Legal Affairs and the Internal Market (A5-0312/2002),

1.  Approves the Commission proposal as amended;

2.  Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;

3.  Calls on the Council to notify Parliament should it intend to depart from the text approved by Parliament;

4.  Asks to be consulted again if the Council intends to amend the Commission proposal substantially;

5.  Instructs its President to forward its position to the Council and Commission.

Text proposed by the Commission   Amendments by Parliament
Amendment 1
Citation 1
Having regard to the Treaty establishing the European Community, and in particular Article 61(c) thereof,
Having regard to the Treaty establishing the European Community, and in particular Articles 61(c) and 65(c) thereof,
Amendment 2
Recital 2
(2)  By Article 65(c) of the Treaty establishing the European Community, these measures are to include measures eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.
Deleted
Amendment 3
Recital 3a (new)
(3a) The European Council meeting in Tampere also called, in point 32 of the Presidency conclusions, for minimum standards to be drawn up on the protection of crime victims and their right to compensation for damages, including legal costs.
Amendment 4
Recital 6
(6)  The Directive applies to all disputes in civil matters, which include commercial law, employment law and consumer protection law.
(6)  The Directive applies to all disputes in civil and commercial matters, which include employment law and consumer protection law, and to civil compensation claims deriving from criminal acts, when they form part of civil proceedings .
Amendment 5
Recital 13
(13)  If legal aid is granted, it must cover the entire proceeding, including expenses incurred in having a judgment declared enforceable or enforced; the recipient should continue receiving this aid if an appeal is brought against him.
(13)  If legal aid is granted, it must cover the entire proceeding, including expenses incurred in having a judgment declared enforceable or enforced; the recipient should continue receiving this aid until the final conclusion of the proceedings, including any appeals he may see fit to bring and any appeals brought against him.
Amendments 37 and 6
Article 1
The purpose of this Directive 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.
The purpose of this Directive is to improve access to justice by establishing minimum common rules relating to legal aid and other financial aspects of civil proceedings.
It shall apply to civil disputes of all types, irrespective of the type of court.
It shall apply to civil and commercial disputes irrespective of the nature of the court or tribunal.
Amendment 8
Article 1, paragraph 2a (new)
Unless otherwise specified, in this Directive the term 'Member States' shall mean Member States with the exception of Denmark.
Amendment 9
Article 2, definition 1
"Legal aid" means all resources made available to persons to ensure their effective access to justice where their financial resources are inadequate to cover the costs of litigation, and includes at least the services of a lawyer and the costs of proceedings;
"Legal aid" means the services of a lawyer and/or other person entitled by the law to represent parties in the courts, providing pre-litigation advice and representation in court, and exemption from, or assistance with, the cost of proceedings;
Amendment 10
Article 2, definition 2
"Litigation in civil matters" means all litigation in matters of civil law, including commercial law, employment law and consumer protection law;
"Litigation in civil matters" means all litigation in civil and commercial matters, including employment law and consumer protection law; this Directive shall not extend to revenue, customs or administrative matters ;
Amendment 11
Article 2, definition 3
"Costs of proceedings" means the cost of the proceedings themselves and lawyers fees.
"Costs of proceedings" means the cost of the proceedings themselves and lawyers fees and the costs of the persons referred to in definition 1.
Amendment 12
Article 2, definition 3a (new)
"Eligible persons" means natural persons and the legal persons referred to in Article 15.
Amendment 13
Article 3, paragraph 1
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 within the meaning of Article to enforce their rights by court action, without prejudice to Article 14.
Eligible 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 within the meaning of Article to enforce their rights by court action, without prejudice to Article 14.
Amendment 14
Article 3, paragraph 2
Legal aid shall include the services of a lawyer and/or other person entitled by the law to represent parties in the courts, providing pre-litigation advice and representation in court, and exemption from, or assistance with, the cost of proceedings.
Deleted
Amendment 15
Article 3, paragraph 2 a (new)
All natural persons who are victims of a crime in a Member State other than that in which they habitually reside shall be entitled, under the conditions laid down in this Directive, to receive appropriate legal aid so as to obtain compensation for damages, including legal costs.
Amendment 16
Article 5, paragraph 2
Such costs shall include interpretation and translation and travel costs where the physical presence of the persons concerned in court is mandatory.
Such costs shall include:
- the payment of local lawyers' fees and any court fees in the Member State of the forum;
- the costs of an interpreter;
- the translation of relevant documents,
- travel costs, either for attendance of parties or witnesses before a court or for the purpose of face-to-face meetings between the client and forum lawyer, or between the parties and their lawyers, where such costs are properly justified and previously authorised by the granting authority and where the judge requires the physical presence of the persons concerned in court.
Amendment 17
Article 5, paragraph 3
The Member State in which the legal aid applicant resides shall grant legal aid to cover costs incurred by the recipient in that state and, in particular, the cost of consulting a local lawyer .
The Member State in which the legal aid applicant resides or habitually resides shall grant compensation in respect of the cost of legal aid.
Amendment 18
Article 7, paragraph 1
Legal aid shall continue to be granted to recipients to cover expenses incurred in having a judgment declared enforceable or enforced in the Member State of the forum, without prejudice to Article 3(3).
Legal aid shall continue to be granted to recipients to cover the costs of proceedings provided for in Article 2 until proceedings in all courts have been completed, including the proceedings for any appeals they see fit to bring and any appeals brought against them, together with the procedures necessary to enforce the judgment in the Member State of the forum, without prejudice to Article 3(3).
Amendment 19
Article 7, paragraph 3
Legal aid shall continue to be provided if an appeal is brought against the recipient. Provision shall be made for re-examination of the application where the appeal is brought by the recipient .
Legal aid shall continue to be provided both if the recipient brings an appeal and if an appeal is brought against the recipient. In the latter case, provision shall be made for re-examination of the application. The Member State of the forum may review the conditions which gave rise to the granting of legal aid at the end of the proceedings in each court.
Amendment 20
Article 8, paragraph 3
Member States shall make provision for appeals against decisions rejecting legal aid applications.
Member States shall make provision for appeals against decisions rejecting legal aid applications, at least where provision is made for appeals in the main proceedings .
Amendment 21
Article 8a (new)
Article 8a
Designation of national authorities
For cross-border disputes, every Member State shall designate the national authority or authorities responsible for submitting applications for legal aid (applying authority) or for receiving applications (receiving authority).
The Member States shall forward to the Commission the name(s) and full address of the authorities referred to in paragraph 1, indicating:
(a) the means of communication at their disposal;
(b) their knowledge of languages.
Member States shall specify the official languages of the European Union in which they will accept legal aid applications made by the relevant authorities of another Member State and related documents.
The lists shall be published in the Official Journal of the European Communities.
Amendment 22
Article 9, paragraph 1
Legal aid applicants who habitually reside in a Member State other than the one in which the dispute is heard may submit their application to the authorities of the Member State in which they habitually reside.
Legal aid applicants who habitually reside in a Member State other than the one in which the dispute is heard may submit their application to the relevant authority or authorities of the Member State in which they habitually reside.
Amendment 23
Article 9, paragraph 2
The relevant authorities of the Member State of residence shall transmit the application to the relevant authorities in the Member State of the forum within eight days .
The relevant authorities of the Member State of residence shall ensure that the processing of applications is as transparent as possible and transmit the application to the relevant authorities in the Member State of the forum within ten days from the time at which the standard form used in legal aid proceedings is duly completed .
Amendment 24
Article 9, paragraph 5
The transmitting authorities may refuse to transmit an application if it is manifestly inadmissible, and in particular if the dispute is not in a civil matter .
The transmitting authorities may refuse to transmit an application made by a relevant authority if:
(a) it relates to a manifestly inadmissible application;
(b) it falls outside the scope of this Directive.
In these cases, Article 8(2) and (3) shall apply mutatis mutandis. The reasons for rejection shall be given. Member States shall make provision for appeals against decisions rejecting legal aid applications.
Amendment 25
Article 9, paragraph 6
Legal aid applications transmitted in accordance with the procedure provided for by this Directive shall be written in the language of the receiving authority or in another language which it accepts.
Legal aid applications transmitted in accordance with the procedure provided for by this Directive shall be written in the official language of the receiving Member State or in another language which it accepts.
Amendment 26
Article 9, paragraph 7
This Directive replaces the Strasbourg Agreement of 1977 on the Transmission of Legal Aid Applications in relations between Member States.
Deleted
Amendment 27
Article 10
Article 10
Notifications to the Commission
Member States shall provide the Commission with a list of authorities empowered to send and receive applications. This list shall be published in the Official Journal of the European Communities.
Deleted
The Member States shall notify the Commission of the list of official languages of the European Union other than their own language or languages in which they accept that legal aid applications may be transmitted to the relevant authorities.
Amendment 28
Article 12
Member States shall ensure that legal aid applications made by applicants not residing in the Member State of the forum are examined within a reasonable time before the case comes to trial .
Member States shall ensure that legal aid applications made by applicants not residing in the Member State of the forum are examined as quickly as possible. Provision may be made to suspend the proceedings until the legal aid application has been decided.
Amendment 29
Article 13, paragraph 1
Member States shall grant legal aid to natural persons involved in a dispute within their jurisdiction who are unable to meet the costs of proceedings as a result of their personal financial situation.
Member States shall grant legal aid to persons as specified in Article 3(1) involved in a dispute within their jurisdiction who are unable to meet the costs of proceedings as a result of their personal financial situation, in order to ensure that they have access to justice .
Amendment 30
Article 13, paragraph 3
Legal aid applicants who do not meet the conditions set out above shall be granted legal aid if they can prove that they are unable to pay the cost of the proceedings, in particular as a result of differences in the cost of living between the Member States of residence and of the forum.
Legal aid applicants above this income threshold shall be granted legal aid if they can prove that they are unable to pay the cost of the proceedings, in particular as a result of differences in the cost of living between the Member States of residence and of the forum.
Amendment 31
Article 13, paragraph 4
Legal aid applicants shall be presumed able to bear the costs of proceedings if in the instant case 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.
Legal aid applicants shall be presumed able to bear the costs of proceedings if in the instant case they are entitled to secure payment of these costs through an insurance contract or other private instrument, such as a no-win, no-fee agreement with the lawyer and providing that court costs will be paid by a third party, as long as such agreements are not prohibited in the Member State in which the applicant resides or in the Member State of the forum .
Amendment 32
Article 16
Legal aid shall be granted in cases where disputes are settled via extra-judicial procedures, if the law makes provision for such procedures or if the parties to the dispute are ordered by the court to have recourse to them.
Legal aid shall be granted in cases where disputes are settled via extra-judicial procedures, if the law encourages the use of such procedures or if the parties to the dispute are ordered by the court to have recourse to them.
Where legal aid is extended to extra-judicial procedures, such procedures shall comply with the principles of Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes( 1 ).
__________________________
() OJ L 115, 17.4.1998, p. 31 .
Amendment 34
Article 17, paragraph 1
Member States shall provide that the winning party shall be entitled to fair reimbursement from the losing party of all or part of the costs of the proceedings.
Member States shall provide that the winning party shall be entitled to reasonable and fair reimbursement from the losing party of the costs of the proceedings. Member States shall also provide that the losing party or parties in the case must meet all or part of the court costs. This requirement to meet costs may be made conditional on whether or not the losing party or parties are deemed to have acted recklessly.
Amendment 35
Article 19
This Directive shall not prevent the Member States from making provision for more favourable arrangements for legal aid applicants.
This Directive shall not prevent the Member States from making provision for more favourable arrangements for legal aid applicants and recipients .
Amendment 36
Article 19a (new)
Article 19a
Precedence over agreements
This Directive shall, in relations between Member States, take precedence over bilateral and multilateral agreements concluded between Member States, including:
-  Strasbourg Agreement of 1977 on the Transmission of Legal Aid Applications,
- the Hague Convention of 25 October 1980 on International Access to Justice.

(1) OJ C 103 E, 30.4.2002, p. 368.

Last updated: 8 May 2004Legal notice