Activities of Clare DALY related to 2021/0394(COD)
Shadow reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council 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
Amendments (42)
Amendment 68 #
Proposal for a regulation
Recital 3
Recital 3
(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 agencies and bodies, and between competent authorities and natural and legal persons, shouldmay be complemented by conditions for conducting such communication through digital means. , while ensuring full respect of fundamental rights, such as the right to a fair trial and to an effective legal remedy.
Amendment 71 #
Proposal for a regulation
Recital 4
Recital 4
(4) This Regulation seeks to improve the effectiveness and speed of judicial procedures and facilitate access to justice by digitalising the existing communication channels, which should lead to cost and time savings, reduction of the administrative burden, and improved resilience in force majeure circumstances for all authorities involved in cross-border judicial cooperation. TNotwithstanding the fact that delays in the processing of cases are normally due to personnel issues, backlogs, and other real world issues, the use of digital channels of communication between competent authorities shcould lead to reduced delays in processing of the cases, which should benefit individuals and legal entities. This is also particularly important in the area of cross-border criminal proceedings in the context of the Union’s fight against crime. In this 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 and protection of their privacy and personal dataIt could also be of benefit in cross-border criminal proceedings.
Amendment 80 #
Proposal for a regulation
Recital 5
Recital 5
(5) It is important that appropriate channels are developed to ensure that, if justice systems canare to efficiently cooperate digitally. Therefore, it is essential to, that appropriate channels are developed. Therefore, this Regulation establishes, at Union level, an information technology instrument that allows swift, direct, interoperable, reliable and secure cross- border electronic exchange of case related data among competent authorities.
Amendment 86 #
Proposal for a regulation
Recital 7 a (new)
Recital 7 a (new)
(7 a) The establishment of digital channels for cross-border communication in cases falling under the scope of the legal acts listed in Annexes I and II should pay particular attention to respect for fundamental rights, including procedural rights.
Amendment 89 #
Proposal for a regulation
Recital 10
Recital 10
(10) In order to ensure secure, swift, interoperable, confidential and reliable communication between Member States for the purposes of cross-border judicial procedures in civil, commercial and criminal matters, any appropriate modern communications technology should be used, provided that certain conditions as to the integrity and reliability of the document received and the identification of the participants in the communication are met. Therefore, a secure and reliable decentralised IT system should be used. Accordingly, it is necessary to establish such an IT systemwill be established for data exchanges in cross-border judicial procedures be established. The decentralised nature of thate IT system wouldill enable secure data exchanges exclusively between one Member State and another, without any of the Union institutions being involved in the substance of those exchanges.
Amendment 93 #
Proposal for a regulation
Recital 11
Recital 11
(11) The decentralised IT system should be comprised of the back-end systems ofin Member States and the relevant Union agencies and bodies, and interoperable access points, through which they are interconnected. The access points of the decentralised IT system should be based on e-CODEX.
Amendment 95 #
Proposal for a regulation
Recital 12
Recital 12
(12) For the purposes of this Regulation, Member States should be able to use instead of a national IT system, a Commission-developed software (reference implementation software). The Commission should be responsible for the creation, maintenance and development of this reference implementation software in accordance with the principles of data protection by design and by default. The Commission should design, develop and maintain the reference implementation software in compliance with the data protection requirements and principles laid down in Regulation (EU) 2018/1725 of the European Parliament and of the Council34 and, Regulation (EU) 2016/679 of the European Parliament and of the Council35 , and Directive (EU) 2016/680 of the European Parliament and of the Council in particular the principles of data protection by design and by default as well as a high level of cybersecurity. The reference implementation software should also includemplement appropriate technical measures and enable the organisational measures necessary for ensuring athe high level of security and interoperability which is appropriate forto the exchange of information in the context of cross-border judicial procedures. _________________ 34 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39). 35 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
Amendment 100 #
Proposal for a regulation
Recital 13
Recital 13
(13) In order to provide swift, secure and efficient assistance to applicants, wWritten communication between competent authorities, such as courts and Central Authorities established under Council Regulation (EC) 4/200936 and Council Regulation (EU) 2019/111137 , should, as a rule, be carried out through the decentralised IT system. In exceptional cases, o to the greatest extent possible. Other means of communication may be used if those are found to be more appropriate for the purposes of ensuring flexibility. HoweverUnless circumstances mitigate against it, the decentralised IT system should always be considered the most appropriate means for exchanging forms between competent authorities established bycompetent in proceedings under the legal acts listed in Annex I and Annex II to this Regulation. _________________ 36 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L 7, 10.1.2009, p. 1–79) 37 Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 2.7.2019, p. 1).
Amendment 101 #
Proposal for a regulation
Recital 14
Recital 14
(14) Transmission through the decentralised IT system could be impossible due to a disruption of the system or where the nature of what has to be transmitted makes transmission by digital means impracticable, such as the transmission of physical/material evidence. It may also not be possible in circumstances where the system is functioning, but the user does not have access due to technical issues, or because the Member State has not yet made it available to them, or because the user has not yet received training in using the system. In addition, transmission through the decentralised IT system may not be appropriate in especially sensitive criminal cases, where the number of people involved in the procedure must be kept as small as possible, and therefore physical information exchange might be required. 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 or by postal service.
Amendment 111 #
Proposal for a regulation
Recital 17
Recital 17
(17) For the purpose of facilitating access of natural and legal persons to the competent authorities, this Regulation should establish an access point at Union level (European electronic access point), as part of the decentralised IT system through which natural and legal persons and their legal representatives should be able to file claims, launch requests, send and receive procedurally relevant information and communicate with the competent authorities, for cases covered by this Regulation. 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.
Amendment 117 #
Proposal for a regulation
Recital 18
Recital 18
(18) Member States should be responsible for the establishment, maintenance and development of national electronic portals (national IT portals) for the purposes of electronic communication between natural and legal persons and the respective authorities which are competent in the proceedings under the legal acts listed in Annex I.
Amendment 120 #
Proposal for a regulation
Recital 19
Recital 19
(19) In the context of the communication in cross-border cases ofby natural and legal persons with competent authorities in cross-border cases, electronic communication should be used as an alternative to the existing means of communication. Notwithstanding, to ensure that access to justice through digital means does not contribute to further widening of the digital divide, the choice of the means of communication between electronic communication, as provided by this Regulation, and other means of communication should be left to the discretion of the individuals concerned. This is particularly important in order to cater for the specific circumstances of disadvantaged groups and people in situation of vulnerability, such as children or older people, who may lack the requisite technical means or digital skills to access digital services.
Amendment 121 #
Proposal for a regulation
Recital 19 a (new)
Recital 19 a (new)
(19 a) The Commission shall make provision for, and fund, training at Member State level for legal professionals in the use of the decentralised IT system.
Amendment 123 #
Proposal for a regulation
Recital 20
Recital 20
(20) In order to enhanccourage electronic cross-border communication and transmission of documents through the decentralised IT system, the European electronic access point and national IT portals, where available, those documents should not be denied legal effect and should not be considered inadmissible in the proceedings solely on the grounds that they are in electronic form. However, that principle should be without prejudice to the assessment of the legal effects or the admissibility of those documents, which may constitute evidence in accordance with national law. It should also be without prejudice to national law regarding the conversion of documents.
Amendment 124 #
(21) In order to facilitate oral hearings in cross-border proceedings in civil, commercial and criminal matters with cross-border implications, this Regulation should provide for the optional use of video conferencing or other distance communication technology for the participation of the parties in such hearings. The procedure for applying and conducting of hearings through videoconferencing or o, as well as for the participation of all other persons entitled, under Member State law, to participate. The use of videoconferencing is a restriction of the right to be present1a and consequently the use of remote proceedings must serve a legitimate aim, and the arrangements for giving evidence must comply with requirements for due process. Remote participation in criminal proceedings cannot be treated as equivalent to physical participation and must therefore remain an exception. Remote proceedings pose significant risks to the fairness of trials, and as a result, caution must be exercised in regard to the use of remote hearings because virtual participation significantly impacts how effectively persons are able to exercise their distance communefence rights, including the right to counsel and the right to examine evidence and witnesses. In regard to criminal matters, and in view of the restrication technology should be governed by the law of the Member State conducting the videoconference. Con fair trial rights that videoconferencing entails, the optional use of videoconferencing should be restricted to circumstances where the defendant is located in another country, and opts to be heard remotely to avoid extradition or having to travel to the country where the criminal proceedings are being undertaken. Videoconferencing should not be used for hearings on detention pre- trial, or for trials on merits in criminal proceedings. The procedure for applying and conducting aof hearing bys through videoconferencing or other distance communication technology should not be refused solely based on the non-existence of national rules governing the use of distance communication technology. In such cases the most appropriate rules available under the national law, such as rules for taking of evidence, should apply mutatis mutandis. be governed by the law of the Member State conducting the videoconference, but should always be optional, and steps taken to ensure that the risks and disadvantages of remote participation are fully explained before any decision is taken, and informed consent is freely given by both parties. Particular safeguards must apply in regard to the use of videoconferencing in cases involving minors,persons with cognitive impairment, persons who require technical assistance, and persons in need of interpretation assistance. Member States should make appropriate video-conferencing technology available for cross-border proceedings. All video- conferencing technology used in remote proceedings must enable all participants to follow the proceedings and to be heard without technical impediments, as well as ensuring that the right to effective and confidential communication with a lawyer, the right to file and inspect evidence, and the right to examine witnesses, is upheld. _________________ 1a ECtHR, Marcello Viola v. Italy (No.2), App. No. 45106/04
Amendment 134 #
Proposal for a regulation
Recital 24
Recital 24
(24) For the purposes of facilitating payment of fees in cases with cross-border implications falling under the scope of the Union legal acts in civil and commercial matters, electronic payment of fees should be possible in an online environment byvia payment methods widely available throughout the Union, such as credit cards, debit cards, e-wallet and bank transfers.
Amendment 141 #
Proposal for a regulation
Recital 29
Recital 29
(29) The application of this Regulation ishould be without prejudice to procedural rights as enshrined in the Charter of Fundamental Rights of the European Union46 and Union law, such as the procedural rights directives47 , and in particular to the right to an interpreter, the right of access to a lawyer, the right of access to the case file, the right to legal aid, and the right to be present at the trial. _________________ 46 Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, p. 391–407). 47 Directive 2010/64/EU of the European Parliament and of the Council of 22 May 2012 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280/1) Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142/1); Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294/1); Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65/1);- Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ 2016 L 132/1); Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297, 4.11.2016).
Amendment 169 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
2. Where electronic communication in accordance with paragraph 1 is not possible due to the disruption of the decentralised IT system, the nature of the transmitted material or exceptionalother circumstances, the transmission shall be carried out by the swiftest, most appropriate alternative means, taking into account the need to ensure a secure and reliable exchange of information.
Amendment 174 #
Proposal for a regulation
Article 3 – paragraph 3
Article 3 – paragraph 3
3. Where the use of the decentralised IT system is not appropriate in view of the specific circumstances of the communication in question, any other secure means of communication may be used.
Amendment 182 #
Proposal for a regulation
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
4 a. Use of the decentralised IT system, or not, as the case may be, shall have no bearing on the admissibility of evidence exchanged.
Amendment 186 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
1. A European electronic access point shall be established on the European e- Justice Portal, to be used for electronic communication between natural or legal persons and their duly appointed legal representatives and competent authorities in cases falling under the scope of the legal acts listed in Annex I.
Amendment 189 #
Proposal for a regulation
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1 a. The European electronic access point shall allow natural and legal persons to nominate a legal representative to perform the actions outlined in paragraph 3 in cases falling under the scope of the legal acts listed in Annex I, and to perform the actions outlined in paragraph 4 in cases falling under the scope of the legal acts listed in Annex II.
Amendment 191 #
Proposal for a regulation
Article 4 – paragraph 2
Article 4 – paragraph 2
2. The Commission shall be responsible for the technical management, development, maintenance, security and support of the European electronic access point. The Commission shall collaborate with external experts with a proven track record in secure, user-friendly and accessible IT development in the design and build stages of the European electronic access point.
Amendment 198 #
Proposal for a regulation
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The European electronic access point shall allow natural and legal persons and their legal representatives to file claims, launch requests, send and receive procedurally relevant information and communicate with the competent authorities.
Amendment 199 #
Proposal for a regulation
Article 4 – paragraph 3 a (new)
Article 4 – paragraph 3 a (new)
3 a. In cases falling under the scope of the legal acts listed in Annex II, the European electronic access point shall allow natural and legal persons or their duly nominated legal representatives to launch requests and to send and receive procedurally relevant information and communicate with the competent authorities in the context of a defence.
Amendment 203 #
Proposal for a regulation
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. Written communication between natural or legal persons or their legal representatives and competent authorities falling within the scope of the legal acts listed in Annex I and Annex II, may be carried out by the following electronic means:
Amendment 211 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. Competent authorities shall communicate with natural and legal persons, or their duly nominated legal representatives, as appropriate, through the European electronic access point, where that natural or legal person gave prior express consent to the use of this means of communication.
Amendment 234 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. A request for conducting an oral hearing through videoconferencing or other distance communication technology may be refused by the competent authority where the particular circumstances of the case are not compatible with the use of such technology. The competent authority shall provide a written statement of reasons for refusal.
Amendment 238 #
Proposal for a regulation
Article 7 – paragraph 3
Article 7 – paragraph 3
Amendment 248 #
Proposal for a regulation
Article 8 – title
Article 8 – title
8 Hearing through videoconferencing or other distance communication technology in cross-border criminal proceedings
Amendment 251 #
Proposal for a regulation
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
1. Where the competent authority of a Member State requests the hearing of a suspect, accused or convicted person in proceedings under the legal acts listed in Annex II, and where the person is located in another Member State, the competent authorityies involved shall allow their participation to the hearing by videoconferencing or other distance communication technology, provided that:
Amendment 262 #
Proposal for a regulation
Article 8 – paragraph 1 – point c
Article 8 – paragraph 1 – point c
(c) the suspect, accused or convicted persons expressed consent on the use of videoconferencing or other distance communication technology. Before expressing consent on the use of videoconferencing or other distance communication technology the suspect or the accused person shall have the possibility to seek the advice of a lawyer in accordance with Directive 2013/48/EU. Competent authorities shall provide suspects, accused or convicted persons with information about the procedure for conducting a hearing through videoconferencing or other distance communication technology, including the right to interpretation in accordance with Directive 2010/64/EU, and the right of access to legal assistance in accordance with Directive 2013/48/EU, before seeking consent on the use of videoconferencing or other distance communication technology.
Amendment 268 #
Proposal for a regulation
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1 a. Member States shall ensure that the consent to videoconferencing by a suspect, accused or convicted person is given voluntarily and unequivocally. The competent authority conducting the hearing by videoconferencing or other distance communication technology shall verify the suspect’s, accused or convicted person’s consent before proceeding with the hearing through videoconferencing or other distance communication technology. Judicial verification of the consent shall be recorded in the records of the hearing in accordance with the national law of the Member State.
Amendment 269 #
Proposal for a regulation
Article 8 – paragraph 1 b (new)
Article 8 – paragraph 1 b (new)
1 b. The issuing Member State authority shall use the decentralised IT system referred to in Article 3(1) in criminal matters to provide information to the executing Member State to enable the suspect, accused or convicted person to appoint a lawyer in the issuing state in accordance with Article 10(5) of the Directive 2013/48/EU and apply for legal aid in the issuing state in accordance with Article 5 of the Directive 2016/1919/EU.
Amendment 271 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
3. Subject to this Regulation, the procedure for conducting a videoconference shall be regulated by the national law of the Member State requesting the videoconference. The Member State which requests the video conference shall also conducting the videoconference.
Amendment 279 #
Proposal for a regulation
Article 8 – paragraph 4
Article 8 – paragraph 4
4. The confidentiality of communication between suspects, accused or convicted persons and their lawyer before and during the hearing through videoconferencing or other distance communication technology shall be ensured. Without prejudice to national law governing the procedure and time limits for submission of evidence, the technology used for the purposes of conducting the hearing through videoconferencing or other distance communication technology shall ensure the possibility to submit, review and examine evidence, including examination of witnesses.
Amendment 296 #
Proposal for a regulation
Article 11 a (new)
Article 11 a (new)
Amendment 315 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Every fivetwo years after the date of application of Article 25, the Commission shall carry out an evaluation of this Regulation and present to the European Parliament and to the Council a report supported by information supplied by the Member States and collected by the Commission.
Amendment 331 #
Proposal for a regulation
Article 24 – paragraph 1 – subparagraph 1
Article 24 – paragraph 1 – subparagraph 1
They shall use that decentralised IT system tofor procedures instituted from the day referred to in the first subparagraph.
Amendment 333 #
Proposal for a regulation
Article 24 – paragraph 2 – subparagraph 1
Article 24 – paragraph 2 – subparagraph 1
They shall use that decentralised IT system tofor procedures instituted from the day referred to in the first subparagraph.
Amendment 335 #
Proposal for a regulation
Article 24 – paragraph 3 – subparagraph 1
Article 24 – paragraph 3 – subparagraph 1
They shall use that decentralised IT system tofor procedures instituted from the day referred to in the first subparagraph.
Amendment 337 #
Proposal for a regulation
Article 24 – paragraph 4 – subparagraph 1
Article 24 – paragraph 4 – subparagraph 1
They shall use that decentralised IT system tofor procedures instituted from the day referred to in the first subparagraph.