Regulation (EU) 2023/2844 of the European Parliament and of the Council of 13 December 2023 on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 81(2), points (e) and (f), and Article 82(1), point (d), thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(1) In its communication of 2 December 2020 entitled ‘Digitalisation of justice in the European Union - A toolbox of opportunities’, the Commission identified the need to modernise the legislative framework of the Union’s cross-border procedures in civil, commercial and criminal law, in line with the ‘digital by default’ principle, while ensuring that all necessary safeguards are in place to avoid social exclusion, and ensuring mutual trust, interoperability and security.

(2) In order to achieve a fully functional area of freedom, security and justice, it is important that all Member States seek to reduce any existing disparities regarding digitalisation of systems and take advantage of opportunities offered by the relevant Union funding mechanisms.

(3) For the purposes of enhancing judicial cooperation and access to justice, legal acts of the Union providing for communication between competent authorities, including Union bodies and agencies, and between competent authorities and natural and legal persons in civil and commercial matters, should be complemented by establishing the conditions for conducting such communication through digital means.

(4) This Regulation seeks to improve the efficiency and effectiveness of judicial procedures and to facilitate access to justice by digitalising the existing communication channels, which should lead to cost and time savings, a reduction of the administrative burden, and improved resilience in force majeure circumstances for all authorities involved in cross-border judicial cooperation. The use of digital channels of communication between competent authorities should lead to reduced delays in the processing of cases, in the short term as well as in the long term. That should benefit individuals, legal entities and Member States’ competent authorities, and strengthen confidence in justice systems. Digitalisation of communication channels would also be of benefit in the area of cross-border criminal proceedings and in the context of the Union's fight against crime. In that regard, the high level of security that digital channels of communication can provide constitutes a step forward, also with respect to safeguarding the rights of the persons concerned, such as the right to respect for private and family life and the right to the protection of personal data.

(5) The fundamental rights and freedoms of all persons concerned by the electronic exchange of data pursuant to this Regulation, in particular the right to effective access to justice, the right to a fair trial, the principle of non-discrimination, the right to respect for private and family life and the right to the protection of personal data, should be fully respected in accordance with Union law.

(6) When fulfilling their obligations under this Regulation, all entities should respect the principle of the independence of the judiciary, having regard to the principle of separation of powers and the other principles of the rule of law.

(7) Effective access to justice is a core objective of the area of freedom, security and justice. Digital transformation is a key step towards improving access to justice and the efficiency, quality and transparency of justice systems.

(8) It is important that appropriate channels and tools are developed to ensure that justice systems can cooperate digitally in an efficient manner. Therefore, it is essential to establish, at Union level, a uniform information technology instrument that allows swift, direct, interoperable, reliable, accessible, secure and efficient cross-border electronic exchange of case-related data between competent authorities. The Commission and the Member States should ensure that legal professionals are involved in the digital transformation of justice systems.

(9) Tools have been developed for the digital exchange of case-related data, which make it possible to avoid replacing or requiring costly modifications to the existing IT systems already established in the Member States. The e-Justice Communication via the On-line Data Exchange (e-CODEX) system, the legal framework for which is established by Regulation (EU) 2022/850 of the European Parliament and of the Council (3), is the main tool of that type developed to date to ensure the swift, direct, interoperable, sustainable, reliable and secure cross-border electronic exchange of case-related data between competent authorities.

(10) Digitalisation of proceedings should ensure access to justice for all, including persons with disabilities. The decentralised IT system and the European electronic access point established by this Regulation should comply with the web accessibility requirements set out in Directive (EU) 2016/2102 of the European Parliament and of the Council (4). At the same time, the electronic payment methods referred to in this Regulation should comply with the accessibility requirements set out in Directive (EU) 2019/882 of the European Parliament and of the Council (5).

(11) Establishing digital channels for cross-border communication would contribute directly to improving access to justice, by enabling natural and legal persons to seek the protection of their rights and assert their claims, initiate proceedings, and exchange case-related data in digital form with judicial or other competent authorities, in procedures falling under the scope of Union law in the area of civil and commercial matters.

(12) In order to ensure that electronic communication tools have a positive impact on access to justice, Member States should allocate sufficient resources to the improvement of citizens’ digital skills and literacy and should pay particular attention to ensuring that a lack of digital skills does not become an obstacle to the use of the decentralised IT system. Member States should ensure that training is offered to all justice professionals concerned, including prosecutors, judges and administrative staff, and competent authorities, in order to ensure effective use of the decentralised IT system. Such training should aim to improve the functioning of justice systems across the Union, as well as the upholding of fundamental rights and values, in particular by enabling justice professionals to efficiently address any challenges that might arise during proceedings or hearings held via videoconferencing or other distance communication technology, due to their virtual nature. Member States should be encouraged and supported by the Commission to apply for grants for training activities under the relevant Union financial programmes.

(13) This Regulation should cover the digitalisation of communication in cases with cross-border implications falling under the scope of certain Union legal acts in civil, commercial and criminal matters. Those acts should be listed in the Annexes to this Regulation. Communication between competent authorities and Union bodies and agencies, such as the European Public Prosecutor’s Office or Eurojust, in cases where they are competent under the legal acts listed in Annex II, should also be covered by this Regulation. Where insolvency practitioners are competent under national law to receive claims lodged by a foreign creditor in insolvency proceedings under Regulation (EU) 2015/848 of the European Parliament and of the Council (6), they should be considered to be competent authorities within the meaning of this Regulation.

(14) This Regulation should not affect the rules governing cross-border judicial procedures established by the legal acts listed in Annexes I and II except for the rules related to communication by digital means introduced by this Regulation. This Regulation should be without prejudice to national law on the designation of any authority, person or body dealing with any aspect of the verification and filing of applications, documents and information. The requirements under applicable national law concerning the authenticity, accuracy, reliability, trustworthiness and the appropriate legal form of documents or information should remain unaffected, except for the rules related to the communication by digital means introduced by this Regulation.

(15) Whether a case is to be considered a matter with cross-border implications should be determined under the legal acts listed in Annexes I and II. Where the legal acts listed in Annexes I and II explicitly state that national law should govern a communication procedure between competent authorities, this Regulation should not apply.

(16) The obligations under this Regulation should not apply to oral communication such as by phone or in person.

(17) This Regulation should not apply to the service of documents pursuant to Regulation (EU) 2020/1784 of the European Parliament and of the Council (7), or to the taking of evidence pursuant to Regulation (EU) 2020/1783 of the European Parliament and of the Council (8). Those Regulations already provide for specific rules on digitalisation of judicial cooperation. However, in order to enhance the electronic service of documents which is to be effected directly on a person who has a known address for service in another Member State, this Regulation should introduce certain amendments to Regulation (EU) 2020/1784.

(18) When the Commission collaborates with external actors in the design and building stages of the European electronic access point, such actors should have experience in secure, user-friendly and accessible IT development.

(19) In order to ensure secure, efficient, swift, interoperable, confidential and reliable communication between Member States for the purposes of cross-border judicial procedures in civil, commercial and criminal matters, appropriate communication technology should be used, provided that certain conditions relating to the security, integrity and reliability of the document received and the identification of the participants in the communication are met. Therefore, a secure, efficient and reliable decentralised IT system should be established for data exchanges in cross-border judicial procedures. The decentralised nature of the IT system should aim to enable secure data exchanges between competent authorities, without any Union institution being involved in the substance of those exchanges. The decentralised IT system should also make secure data exchanges possible between a Member State and Union bodies and agencies, such as Eurojust, in cases falling under the scope of the legal acts listed in Annex II.

(20) The decentralised IT system should be comprised of back-end systems in the Member States and the relevant Union bodies and agencies, and interoperable access points through which those systems are linked using secure interconnections. The access points of the decentralised IT system should be based on e-CODEX.

(21) For the purposes of this Regulation, Member States should be able to use software developed by the Commission (reference implementation software) instead of a national IT system. That reference implementation software should be based on a modular setup, meaning that the software is packaged and delivered separately from the e-CODEX components needed to connect it to the decentralised IT system. Such a setup should enable Member States to reuse or enhance their existing national judicial communication infrastructure for the purpose of cross-border use. For matters relating to maintenance obligations, Member States could also use software developed by the Hague Conference on Private International Law (iSupport).

(22) The Commission should be responsible for the creation, development and maintenance of the reference implementation software, in accordance with the principles of data protection by design and by default, and with accessibility requirements. The Commission should design, develop and maintain the reference implementation software in compliance with the data protection requirements and principles laid down in Regulations (EU) 2018/1725 (9) and (EU) 2016/679 (10) of the European Parliament and of the Council, and Directive (EU) 2016/680 of the European Parliament and of the Council (11), in particular the principles of data protection by design and by default as well as a high level of cybersecurity. In particular, any natural or legal person that takes part in creating, developing or maintaining the national IT systems or the reference implementation software should be bound by those requirements and principles. The reference implementation software should also include appropriate technical measures and should allow for organisational measures, including the necessary oversight for ensuring a level of security and interoperability which is appropriate for the exchange of information in the context of cross-border judicial procedures. In order to ensure interoperability with national IT systems, the reference implementation software should be able to implement the digital procedural standards, as defined in Regulation (EU) 2022/850, for the corresponding legal acts listed in Annexes I and II to this Regulation.

(23) In order to provide swift, secure and efficient assistance to applicants, communication between competent authorities, such as courts and central authorities established under Council Regulations (EC) No 4/2009 (12) and (EU) 2019/1111 (13), should, as a rule, be carried out through the decentralised IT system.

(24) Transmission through the decentralised IT system could be impossible due to a disruption of the system. Any disruption of the system should be resolved as soon as possible by the relevant Union bodies and the Member States. The transmission could also be impossible in practice due to the physical or technical nature of what has to be transmitted, such as the transmission of physical evidence or the need to transmit the original document in paper format to assess its authenticity, or due to force majeure. Situations of force majeure, as a general rule, follow from unforeseeable and unavoidable events arising from a cause external to the competent authority. Where the decentralised IT system is not used, communication should be carried out by the most appropriate alternative means. Such alternative means should entail, inter alia, transmission being performed as swiftly as possible and in a secure manner by other secure electronic means, by postal service or by transmission in person where such transmission is possible.

(25) The decentralised IT system should be used by default in the communication between competent authorities. However, for the purposes of ensuring the flexibility of judicial cooperation, other means of communication could be more appropriate in certain situations. This could be appropriate where the competent authorities need direct personal communication, and in particular for direct communication between courts under Regulations (EU) 2015/848 and (EU) 2019/1111, as well as for direct communication between competent authorities under Council Framework Decisions 2005/214/JHA (14), 2006/783/JHA (15), 2008/909/JHA (16), 2008/947/JHA (17), 2009/829/JHA (18), Directive 2014/41/EU of the European Parliament and of the Council (19) or Regulation (EU) 2018/1805 of the European Parliament and of the Council (20) where the communication between the competent authorities could be carried out by any means or any appropriate means, as provided for in those acts. In such cases, competent authorities could use less formal communication means, such as e-mail. Other means of communication could also be appropriate where the communication involves the handling of sensitive data or where the conversion of voluminous documentation into electronic form imposes a disproportionate administrative burden on the competent authority that sends the documentation. Considering that competent authorities deal with sensitive data, the security and reliability of the information exchange should always be ensured when selecting the appropriate means of communication. The decentralised IT system should always be considered the most appropriate means of exchanging forms established pursuant to the legal acts listed in Annexes I and II to this Regulation. However, forms could be exchanged by other means in cases where the competent authorities of different Member States are present at the same location in a Member State for the purpose of assisting in the execution of judicial cooperation procedures under the legal acts listed in Annex II to this Regulation, if it is necessary due to the urgency of the matter, such as in situations under Directive 2014/41/EU where the issuing authority assists in the execution of the European Investigation Order in the executing State or where competent authorities of different Member States coordinate judicial cooperation procedures under the legal acts listed in Annex II to this Regulation at a meeting in person.

(26) In relation to the components of the decentralised IT system which are under the responsibility of the Union, in accordance with the security requirements established by Regulation (EU) 2022/850, the entity managing the system’s components should have sufficient resources in order to ensure their proper functioning.

(27) For the purpose of facilitating the access of natural and legal persons to the competent authorities in civil and commercial matters, this Regulation should establish an access point at Union level, a ‘European electronic access point’, as part of the decentralised IT system, which should contain information for natural and legal persons on their right to legal aid, and through which they should be able to file claims, launch requests, send, request and receive procedurally relevant information, including digitalised case files or parts thereof, and communicate with the competent authorities, or have their representative do so on their behalf, in the instances covered by this Regulation or be served with judicial or extra-judicial documents. The European electronic access point should be hosted on the European e-Justice Portal, which serves as a one-stop-shop for judicial information and services in the Union.

(28) The right to legal aid or legal assistance as provided for by Union and national law, in particular the right to legal aid as established by Regulation (EU) No 650/2012 of the European Parliament and of the Council (21), Council Regulations (EC) No 4/2009 and (EU) 2019/1111 and Council Directive 2003/8/EC (22), applies. Natural and legal persons should be able to access relevant information on the e-Justice Portal through links on the European electronic access point.