Digitalization of cross-border judicial cooperation

By Mia Hem

The European Commission has launched an initiative aiming at modernizing EU cross-border judicial cooperation through digitalization, with the main purpose of using new digital tools for electronic communication in cross-border judicial procedures. Today, most data exchanges still takes place on paper, which slows down the processes and is less efficient. Moreover, the COVID-19 pandemic has shown us that traditional communication channels are more vulnerable to crises. This new initiative is set to increase the efficiency and resilience of EU cross-border judicial cooperation through improved digitalization in civil, commercial, and criminal matters, while also improving access to justice for citizens and businesses.

Two proposals have been adopted to confront this change: a proposal for a regulation laying down rules on digital communication in judicial cooperation procedures in civil, commercial, and criminal matters, and a proposal for a directive aligning with the existing rules on communication with the rules of the proposed regulation. With them, using digital communication for all judicial cooperation and data exchanges between the competent national authorities becomes mandatory (with some exceptions). Citizens and businesses will gain the possibility to communicate with courts and other judicial authorities of the Member States electronically by using national IT portals, where such exist, or alternatively, a European Access Point hosted by the European e-justice Portal. To use these portals, citizens will need to possess some sort of a qualified or advanced electronic signature or seal, which will be recognized in all the Union. The proposed legislation also guarantees that electronic documents are valid and cannot be refused by the authorities because they have an electronic form. It will allow for remote hearings, in both civil and criminal cases.

So, how can we achieve these objectives suggested in the proposals? This could be done by making the digital channel the mandatory and default one for all judicial cooperation communication data exchanges between competent national authorities in civil, commercial and criminal matters with cross-border implications; ensuring that EU Member States accept electronic communication in cross-border civil procedures coming from citizens and businesses, without excluding the possibility for them to communicate on paper (thus developing an access point such as the European e-justice Portal); providing legal basis for conducting oral hearings through videoconference or other distance communication technology in cross-border procedures in civil, commercial and criminal matters; ensuring that electronic documents are not refused or denied based on their nature; ensuring that electronic identities, signatures and seals can be used in the context of digital exchange of judicial documents in line with regulations; providing the possibility of electronic payment of fees in cross-border civil and commercial cases; defining the responsibilities of the respective personal data controllers and processors, and describing high-level requirements for ensuring appropriate technical and organizational measures to guarantee secure data processing; and lastly, ensuring that the different Member States’ IT systems are adequate and can communicate with each other.