Legal Aid

Author:Sally Langrish
Profession:Assistant Legal Adviser at the Foreign and Commonwealth Office, London, since 1995
Pages:240-257
SUMMARY

Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes. See also the corrigenda set out at the end of the Act.

 
INDEX
CONTENT

    Sally Langrish1 obtained an LL B (Honours) at University College London in 1989, and became Barrister at Law (Middle Temple) in 1991.

    She has been Assistant Legal Adviser at the Foreign and Commonwealth Office, London, since 1995.

    Since 2000, she has been First Secretary at the Justice and Home Affairs Section (Civil Law) of the United Kingdom Permanent Representation to the European Union.

    Previous publication

    The Treaty of Amsterdam: Selected highlights', European Law Review, Vol.23, No 1, February 1998.

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Directive 2002/8/EC on civil legal aid was adopted to fulfil a political remit from the conclusions of the 1999 Tampere European Council. In order to facilitate access to justice in civil and commercial cases, the European Council invited the Council of Ministers to establish minimum standards ensuring an adequate level of legal aid in cross-border cases throughout the Union 2.

The directive was adopted under Articles 61 (c) and 67 of the EC Treaty. These articles, in conjunction with Article 65 of the Treaty, enable the adoption of 'measures in the field of judicial cooperation in civil matters having cross-border implications ... in so far as necessary for the proper functioning of the internal market'. Under Article 65 (c), the measures permitted include those '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'. In accordance with the procedural requirements of Article 67 (as it applied before the entry into force of the Treaty of Nice on 1 February 2003 3), the Council acted on the basis of a proposal from the Commission of 18 January 2002 4. The European Parliament was consulted and delivered its opinion on 25 September 2002 5. The directive was adopted unanimously by the Member States on 27 January 2003.

The directive contains 23 articles set out in 5 chapters. Chapter I deals with scope and definitions; Chapter II sets out the right to legal aid; Chapter III determines the conditions and extent of legal aid; Chapter IV establishes the procedure for making a legal aid application under the directive; and Chapter V contains final provisions.

Chapter I: Scope and Definitions

Article 1(1) sets out the central aim of the directive which is 'to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid in such disputes'. This, of course, echoes the mandate from the Tampere conclusions. Article 1(2) limits the application of the directive to 'cross-border disputes'. These are defined in Article 2 of the directive. Article 2(1) and (3) defines a cross-border dispute as one where the party applying for legal aid is, at the time when he submits an application under the directive, domiciled or habitually resident in a different Member State fromPage 241 the Member State where the court hearing the dispute or enforcing a judicial decision is located 6. In simple terms, then, the directive applies where a party needs to litigate or enforce a decision in another Member State from the one where he normally lives. It does not, by contrast, govern cases which can be considered 'domestic' in the sense that the litigant and the relevant court are located in the same Member State, even if there may be other cross-border aspects to the case.

Article 1 contains two other elements determining the scope of the directive. The first element is the type of dispute to which the directive applies. Article 1(2) says that it applies to civil and commercial matters, whatever the nature of the court or tribunal hearing the dispute. 'Civil and commercial matters' are not defined. However, this wording echoes Article 1 of the Brussels I Regulation and so the directive is likely to be interpreted as covering disputes which would be covered by that regulation. Article 1 (2) of the directive says that it will not extend, in particular, to revenue, customs or administrative matters. This, again, echoes Article 1(1) of the Brussels I Regulation.

The second element to note concerning scope is that the directive does not cover all Member States: Article 1(3) provides that the directive does not apply to Denmark. The reason for this is found in recital 34, which refers to Articles 1 and 2 of the protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community. That protocol excludes Denmark from taking part in the adoption of proposed measures pursuant to Title IV of the EC Treaty: the legal bases for the directive - Articles 61 and 67 - fall, of course, within Title IV.

By contrast to Denmark's position, the United Kingdom and Ireland were able, under the protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, to notify whether or not they wished to participate in this directive. Recital 33 in the preamble to the directive records that both those Member States gave notice of their wish to participate in the adoption of the directive, in accordance with Article 3 of the relevant protocol. Accordingly, the directive applies to all the Member States except Denmark.

Chapter II: Right to Legal Aid

This chapter determines which persons are entitled to apply for legal aid under the directive and defines the basic concept of legal aid for the purposes of the directive.

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In terms of the persons entitled to apply for legal aid, Article 3(1) provides that the rights under the directive are conferred on natural persons. By implication, legal persons such as companies or not-for-profit organisations are not covered. Article 4 makes clear that the directive covers both citizens of the European Union and third-country nationals residing lawfully in a Member State. This provision operates as a non-discrimination rule, requiring Member States to treat these two categories of persons equally.

Article 3 is the key article defining the concept of legal aid for the purposes of the directive. As a general principle, Article 3(1) gives litigants the right to receive 'appropriate legal aid in order to ensure their effective access to justice'. The article makes clear that this right is subject to conditions laid down elsewhere in the directive and that the dispute must be within the scope of the directive. Recital 11 gives a good summary of what is meant by 'appropriate legal aid'. It covers, firstly, pre-litigation advice with a view to reaching a settlement prior to bringing legal proceedings, secondly, legal assistance in bringing a case before a court, and, thirdly, representation in court and assistance with or exemption from the cost of proceedings.

These three different aspects of appropriate legal aid are set out in Article 3(2). The focus is clearly on situations where cross-border court proceedings are actually under way or where there is a real prospect of such proceedings. Because pre-litigation advice under Article 3 (2) (a) is limited to the purpose of reaching a settlement prior to bringing proceedings, this appears to exclude applicants from seeking legal aid for other, wider purposes or where there is no litigation in prospect. Article 3(2)(b) confers the right to legal assistance and representation in court: this comes into play at the stages of preparation of the case and presentation of the case to the court, both through written pleadings and at a court hearing.

Assistance with the costs of the case is also dealt with in Article 3(2)(b) and could involve several types of cost. One type is court fees, including fees paid by the court to persons (presumably such as court officials or expert witnesses) who perform acts during the proceedings. A second category of costs is various costs specific to the situation of the cross-border litigant, such as costs of interpretation, translation and travel to the hearing. These are dealt with in Article 7 of the directive and described further below. A third category is the costs of the opposing party. In some Member States a party who loses a case is liable to pay his opponent's legal costs. The final paragraph of Article 3(2) provides that if a recipient of legal aid under the directive loses the case and is subject to such a costs rule, those costs should be covered by his legal aid if a litigant habitually resident in the Member State where the court is situated would have been covered in this way. This is essentially a non-discrimination rule and does not require Member States automatically to grant legal aid to a cross-border applicant to cover the successful party's costs if this is not thePage 243 normal practice under their system. Recital 12 makes clear that this is to be left to the law of the Member State where the court is sitting or where enforcement is sought.

Article 3(3) contains an important limitation to the concept of 'appropriate legal aid' in the context of 'proceedings especially designed to enable litigants to make their case in person'. These proceedings might include small claims procedures of the sort which exist in several Member States or simplified court or tribunal procedures. In such types of proceedings, Article 3(3) says that Member States need not provide legal assistance or representation. This suggests, by contrast, that the right to pre-litigation advice under Article 3 (2) (a) still applies in these cases. As a safeguard, Article 3(3) allows (and probably requires) legal aid to be granted if the court or other competent authority decides that legal aid is necessary to ensure equality of parties or in view of the complexity of the case.

Article 3(4) and (5) addresses another aspect of 'appropriate' legal aid by focusing on the amount received by the litigant. Article 3 (4) allows a Member State to require a financial contribution towards the cost of proceedings: if it does, the legal aid recipient will be assessed according to Article 5 (described below) for his ability to contribute. Under Article 3(5), a Member State may require a legal aid recipient to refund all or part of what he has received if his financial situation has substantially improved or if the legal aid was granted on the basis of inaccurate information given by the recipient. These provisions work together with Articles 5 and 9(4) to allow Member States to allocate funds available for legal aid according to the recipient's financial need, thereby promoting good use of public funds.

Chapter III: Conditions and Extent of Legal Aid

Following on from the broad principles in Chapter II, this chapter sets out more detailed rules governing the assessment of applications for legal aid. Articles 5 and 6 are the most important. These deal, respectively, with conditions relating to the applicant's financial resources and conditions relating to the substance of the dispute. The provisions allow Member States, to some extent, to ensure that the money which they have available for civil legal aid can be targeted at applicants and cases which most merit public funding. Although the question of what costs are borne respectively by the applicant's home Member State and the Member State where the court is situated is more fully dealt with in Articles 8 and 12 (described below), it is helpful in understanding Articles 5 and 6 to know that the majority of the legal aid costs fall to be covered by the Member State where the court is sitting. Accordingly, thePage 244 applicant is being assessed under the rules of that Member State's legal aid system, and not under the system in his home Member State.

Article 5(1) establishes the general proposition that Member States should fund persons who are 'partly or totally unable to meet the cost of proceedings ... as a result of their economic situation, in order to ensure their effective access to justice'. Article 5(2) allows the Member State to assess the cross-border applicant's economic situation in the light of objective factors such as his income, his capital resources or his family situation. This assessment may also take into account the resources of persons who are financially dependent on the applicant.

Some Member States use financial thresholds above which applicants are presumed to be able to bear the cost of proceedings. Article 5(3) allows such thresholds to be used in the context of the directive so long as they are based on the objective factors mentioned in Article 5(2). However, as a safeguard against the risk that a threshold may indirectly discriminate against a cross-border applicant because of differences in the cost of living between the Member States, Article 5(4) provides that the threshold may not be used if a legal aid applicant can prove that he is unable to pay the cost of proceedings because of such differences in the cost of living. Recital 15 mentions a potentially relevant factor to be taken into account here, namely whether the ap -plicant would satisfy the criteria for financial eligibility for legal aid in his own Member State.

Article 5(5) contains one further ground on which legal aid may be refused for financial reasons. Legal aid need not be granted to an applicant who enjoys, in the instant case, effective access to another mechanism that covers the cost of proceedings. This could include, for example, funding available from legal expenses insurance or because of the possibility which exists in certain Member States to obtain a conditional fee arrangement (sometimes called a 'no-win, no-fee' arrangement). Recital 16 makes clear that these other mechanisms are not in themselves a form of legal aid but that they can warrant a presumption that the litigant can bear the cost of legal proceedings notwithstanding his personal financial situation.

Article 6 is the second key article in determining the applicant's eligibility for legal aid. The conditions in this article deal with the strengths or merits of the applicant's case. As a first step, Article 6(1) allows a Member State to reject outright an application for legal aid for an action which appears to be manifestly unfounded. If the case cannot initially be said to be manifestly unfounded, Article 6(2) provides that, once the applicant has been offered initial pre-litigation advice, he may, so long as access to justice is still guaranteed 7, be refused further legal aid on 'grounds related to the merits of the case'. In other words, the Member State may decide that his case is in-Page 245sufficiently strong to justify the use of public funding. Any refusal of legal aid under Article 6 of the directive is subject to the appeal provisions of Article 15, described below.

The directive gives little guidance on the way in which Member States' competent authorities should assess the merits of the applicant's case, leaving it to national law and procedure in each Member State. These national systems may vary quite widely in the criteria that they use: potential criteria might include an assessment of the prospects of success, the type of case, and the potential financial and other benefits to the applicant of winning the case.

Article 6(3) implies that an approach based on a range of such criteria is valid by focusing on two criteria besides the pure prospect of winning the legal arguments in the case. First, it specifically requires Member States to consider the importance of the individual case to the applicant. Second, it allows the Member State to take into account the nature of the case in two specific categories of dispute. The first category is where the applicant claims damage to his reputation but has suffered no material or financial loss - this would cover certain types of libel actions in some Member States. The second category is where the claim arises directly out of the applicant's trade or self-employed profession; this reinforces the exclusion of commercial litigants in Article 3(1) of the directive by further excluding claims brought by an individual in the context of his business activities.

Articles 7 and 8 focus specifically on the cross-border dimension of the case, recognising that certain costs are inherent in the fact that the applicant does not live in the same Member State as the court hearing the dispute. Article 7 requires legal aid granted by the Member State where the court is sitting to cover certain costs directly related to the cross-border nature of the dispute. These are interpretation, translation of documents necessary for the resolution of the case, and travel costs for any person whose presence is required in court for the presentation of the case. Recital 19 reminds courts that they should take full advantage of the possibilities offered by Council Regulation (EC) No 1206/2001 on the taking of evidence in civil or commercial matters 8. These possibilities include the use of videoconference and teleconference technology, as well as more traditional means of taking evidence from a witness outside the jurisdiction.

Article 8 counterbalances Article 7 by requiring the applicant's home Member State to bear certain other cross-border-related costs. The home Member State must provide legal aid to cover the cost of the applicant obtaining pre-litigation assistance and advice in his home Member State until his application for legal aid has been received by the Member State where the court is sitting. The home Member State also covers the cost of translating the application for legal aid and the necessary supporting documents.

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Article 9 of the directive reflects the fact that obtaining a court ruling on a dispute may not be the end of the story. Recital 20 says that if legal aid is granted it 'must cover the entire proceeding, including expenses incurred in having a judgment enforced'. It should also continue 'if an appeal is brought either against or by the recipient in so far as the conditions relating to the financial resources and the substance of the dispute remain fulfilled. Article 9(1) and (2) confers the right to legal aid to cover the cost of cross-border enforcement of a judgment. Article 9(3) deals with legal aid for an appeal, explicitly linking the right to continued legal aid to ongoing eligibility under Articles 5 and 6. This means, in particular, that the prospects of the applicant's success in bringing or defending an appeal may be assessed before legal aid is granted.

As a more general rule, Article 9(4) authorises Member States to re-examine eligibility for legal aid at any stage in the proceedings on grounds set out in Articles 3(3) and (5), 5 and 6 of the directive. This means that a Member State may at any time review the status of the applicant's financial resources, the merits of the case, and the appropriateness of legal aid in view of the type of court hearing the case or procedure. These checks are not limited to the moment where the applicant requests continuation of legal aid for an appeal or for enforcement proceedings.

Article 10 covers another possibility for extension of legal aid beyond the initial court proceedings, by covering extrajudicial procedures. If the law or the court requires the parties to a dispute to use extrajudicial procedures, such as mediation or arbitration, legal aid must be extended to cover these procedures, subject to the conditions defined in the directive.

Chapter IV: Procedure

This chapter sets out the procedural practicalities for an individual applying for legal aid under the directive. It covers completion of the necessary application forms, transmission of the application from the individual's home Member State to the Member State where the court is sitting or where the decision is to be enforced, language and translation issues, and rules for processing the application in the Member State granting legal aid 9.

Article 12 is the starting point. It provides, as a basic rule, that legal aid is to be granted (and, by implication, paid for) or refused by the competent authority of the Member State in which the court is sitting. In other words, apart from the limited costs covered by Article 8 (described above), cross-border legal aid is not the responsibility of the applicant's home Member State.

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Recital 24 describes it as 'appropriate' that legal aid is granted by the competent authorities of the Member State in which the court is sitting. Recital 23 says that the Member State will apply its own legislation in compliance with the principles of the directive to determine whether or not to grant legal aid.

Article 14 requires each Member State to designate an authority or authorities competent to send and receive legal aid applications under the directive. The authority competent to send applications is called the 'transmitting authority'. The authority which may receive applications is called the 'receiving authority'. The Member States must provide the Commission with the names and addresses of their competent authorities and the geographical areas in which they have jurisdiction. This information will be published in the Official Journal.

Article 13 sets out the rules for introduction of a legal aid application by the applicant and for its transmission, if necessary, between Member States' authorities. Under Article 13(1), the applicant may choose to submit his application either to the transmitting authority in his home Member State or to the receiving authority in the Member State where the court is sitting or the decision is to be enforced. Article 16 provides for a standard form for legal aid applications under the directive 10. Recital 28 in the preamble to the directive says that the purpose of the standard form is to make application procedures easier and faster. According to recital 29, the standard application form, as well as national application forms, should be made available on a European level through the information system of the European Judicial Network 11.

Articles 13(2), 14 and 8(b) of the directive deal with language and translation issues arising out of the application for legal aid. Article 13 (2) offers the applicant more than one possibility. He may complete the form in the official language (or one of the languages) of the Member State of the receiving authority, so long as this language is one of the languages of the Community institutions. Alternatively, Article 14(3) allows a Member State to notify the Commission of other Community languages in which its receiving authority is prepared to receive applications under the directive. Those other languages are to be communicated to the Commission and will be published in the Official Journal. Article 13(2) requires supporting documents accompanying the legal aid application also to be translated in accordance with these rules. We have already seen that, under Article 8(b), the applicant's home Member State must provide legal aid needed to cover the cost of translating the application and necessary supporting documents. However, Article 8 (b) only applies where the application is submitted to the transmitting authority in the applicant's home Member State. This suggests that if the applicant chooses to submit his application directly to the receiving authority in the Member State where the court is sitting he must bear the costs of translation himself.

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The transmitting authority has a role in ensuring 'quality control' of an application before sending it to another Member State. Where the application is submitted to the transmitting authority in the applicant's home Member State, that authority may, under Article 13(3), refuse to transmit the application if it is manifestly unfounded or manifestly outside the scope of the directive. If the transmitting authority does so, its decision is subject to the provisions for review or appeal provided for in Article 15(2) and (3) (described below). The transmitting authority also has a duty to assist the applicant by ensuring that the application is accompanied by all the supporting documents required to enable the application to be determined (see Article 13(4)).

Once the transmitting authority has received the application duly completed in one of the languages authorised by the directive and the supporting documents have been translated where necessary into those languages, it must transmit the application within 15 days to the receiving authority in the Member State where the court is sitting. Article 16 provides for a standard form to facilitate transmission of legal aid application between the transmitting and receiving authorities. This form has already been established by Commission decision of 18 June 2003 12.

No legalisation or any other such formality is needed for documents transmitted under the directive (see Article 13(5)). The Member State may not charge the applicant for services rendered in assisting him to complete the application, or for transmission of the application. However, the transmitting authority may recover translation costs from the applicant if the application is rejected by the competent authority in the Member State receiving the application.

Once the application has been received in the Member State where the court is sitting, the processing of the application is governed by Article 15 of the directive. Article 15(1) requires the national authorities which determine the application in the receiving Member State to keep the applicant fully informed of the processing of the application. If the application is totally or partially rejected, the authorities must give reasons for this.

Article 15(3) and (4) allows the applicant to seek a review of or appeal against any such rejection. However, if the request for legal aid is rejected by a court or tribunal against whose decision there is no judicial remedy under the national law of the receiving Member State or by a court of appeal in the receiving Member State, no further provision for review or appeal is necessary. Article 15(4) contains further a specific provision governing an appeal, where an application is rejected under Article 6 because it is manifestly unfounded or because of the merits of the case. If the appeal available against such a decision is of an administrative nature (for example, to a legal aid authority rather than to an independent court or tribunal), the decision of that administrative appeal must always be ultimately subject to judicial review.

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Chapter V: Final Provisions

This brief closing chapter contains a number of miscellaneous provisions, mainly linked to Member States' implementation of the directive into their national law. Article 18 aims to encourage provision of information on legal aid to the general public and professional circles. It requires the competent national authorities to cooperate to provide information on the various systems of legal aid, in particular via the European Judicial Network 13.

Article 19 makes clear that the Member State may adopt more favourable provisions for legal aid applicants and recipients than those required by the directive. This fits in with the overall aim in Article 1 of the directive, namely to establish minimum common rules. By definition, the Member States are free to go further in their national law if they so wish.

Article 20 governs the relationship of the directive to existing international agreements covering the same subject matter. As between the Member States, the directive takes precedence over such agreements. Article 20 mentions two agreements, in particular, which are affected by this rule. The first is the 1977 Council of Europe European agreement on the transmission of applications for legal aid amended by the 2001 additional protocol. Recital 32 in the preamble to the directive clarifies that this agreement and protocol continue to govern relations between the Member States and third countries that are party to the agreement or protocol14. The second is the Hague Convention of 25 October 1980 on International Access to Justice.

Finally, in the normal way, the directive sets a deadline for its transposition into the national law of the Member States. Article 21 sets this deadline as 30 November 2004. The Member States are required to bring into force the laws, regulations and administrative provisions necessary to comply with the directive no later than that date (the same date on which the standard form for legal aid applications is to be established under Article 16). As an exception to this transposition date, the Member States are given an extra 18 months to transpose Article 3 (2)(a) into their national law. Accordingly, the right to cross-border legal aid for pre-litigation advice with a view to reaching a settlement prior to bringing legal proceedings will apply after 30 May 2006.

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Council Directive 2002/8/EC of 27 January 2003

to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes

The Council of the European Union

Having regard to the Treaty establishing the European Community, and in particular Articles 61 (c) and 6 7 thereof,

Having regard to the opinion of the Economic and Social Committee15,

Having regard to the proposal from the Commission16,

Having regard to the opinion of the European Parliament 17,

Whereas:

(1) The European Union has set itself the objective of maintaining and developing an area of freedom, security and justice in which the free movement of persons is ensured. For the gradual establishment of such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters having cross-border implications and needed for the proper functioning of the internal market.

(2) According to Article 6 5 (c) of the Treaty, 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.

(3) The Tampere European Council on 15 and 16 October 1999 called on the Council to establish minimum standards ensuring an adequate level of legal aid in cross-border cases throughout the Union.

(4) All Member States are contracting parties to the European Convention for the Protection of Human Rights and Fundamental Freedom of 4 November 1950. The matters referred to in this Directive shall be dealt with in compliance with that Convention and in particular the respect of the principle of equality of both parties in a dispute.

(5) This Directive seeks to promote the application of legal aid in cross-border disputes for persons who lack sufficient resources where aid is necessary to secure effective access to justice. The generally recognised right to access to justice is also reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union.

(6) Neither the lack of resources of a litigant, whether acting as claimant or as defendant, nor the difficulties flowing from a dispute's cross-border dimension should be allowed to hamper effective access to justice.

(7) Since the objectives of this Directive cannot be sufficiently achieved by the Member States acting alone and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(8) The main purpose of this Directive is to guarantee an adequate level of legal aid in cross-border disputes by laying down certain minimum common standards relating to legal aid in such disputes. A Council directive is the most suitable legislative instrument for this purpose.

(9) This Directive applies in cross-border disputes, to civil and commercial matters.

(10) All persons involved in a civil or commercial dispute within the scope of this Directive must be able to assert their rights in the courts even if their personal financial situation makes it impossible for them to bear the costs of the proceedings. Legal aid is regarded as appropriate when it allows the recipient effective access to justice under the conditions laid down in this Directive.

(11) Legal aid should cover pre-litigation advice with a view to reaching a settlement prior to bringing legal proceedings, legal assistance in bringing a case before a court and representation in court and assistance with or exemption from the cost of proceedings.

(12) It shall be left to the law of the Member State in which the court is sitting or where enforcement is sought whether the costs of proceedings may include the costs of the opponent imposed on the recipient of legal aid.

(13) All Union citizens, wherever they are domiciled or habitually resident in the territory of a Member State, must be eligible for legal aid in cross-border disputes if they meet the conditions provided for by this Directive. The same applies to third-country nationals who habitually and lawfully reside in a Member State.

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(14) Member States should be left free to define the threshold above which a person would be presumed able to bear the costs of proceedings, in the conditions defined in this Directive. Such thresholds are to be defined in the light of various objective factors such as income, capital or family situation.

(15) The objective of this Directive could not, however, be attained if legal aid applicants did not have the possibility of proving that they cannot bear the costs of proceedings even if their resources exceed the threshold defined by the Member State where the court is sitting. When making the assessment of whether legal aid is to be granted on this basis, the authorities in the Member State where the court is sitting may take into account information as to the fact that the applicant satisfies criteria in respect of financial eligibility in the Member State of domicile or habitual residence.

(16) The possibility in the instant case of resorting to other mechanisms to ensure effective access to justice is not a form of legal aid. But it can warrant a presumption that the person concerned can bear the costs of the procedure despite his/her unfavourable financial situation.

(17) Member States should be allowed to reject applications for legal aid in respect of manifestly unfounded actions or on grounds related to the merits of the case in so far as pre-litigation advice is offered and access to justice is guaranteed. When taking a decision on the merits of an application, Member States may reject legal aid applications when the applicant is claiming damage to his or her reputation, but has suffered no material or financial loss or the application concerns a claim arising directly out of the applicant's trade or self-employed profession.

(18) The complexity of and differences between the legal systems of the Member States and the costs inherent in the cross-border dimension of a dispute should not preclude access to justice. Legal aid should accordingly cover costs directly connected with the cross-border dimension of a dispute.

(19) When considering if the physical presence of a person in court is required, the courts of a Member State should take into consideration the full advantage of the possibilities offered by Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters18.

(20) If legal aid is granted, it must cover the entire proceeding, including expenses incurred in having a judgment enforced; the recipient should continue receiving this aid if an appeal is brought either against or by the recipient in so far as the conditions relating to the financial resources and the substance of the dispute remain fulfilled.

(21) Legal aid is to be granted on the same terms both for conventional legal proceedings and for out-of-court procedures such as mediation, where recourse to them is required by the law, or ordered by the court.

(22) Legal aid should also be granted for the enforcement of authentic instruments in another Member State under the conditions defined in this Directive.

(23) Since legal aid is given by the Member State in which the court is sitting or where enforcement is sought, except pre-litigation assistance if the legal aid applicant is not domiciled or habitually resident in the Member State where the court is sitting, that Member State must apply its own legislation, in compliance with the principles of this Directive.

(24) It is appropriate that legal aid is granted or refused by the competent authority of the Member State in which the court is sitting or where a judgment is to be enforced. This is the case both when that court is trying the case in substance and when it first has to decide whether it has jurisdiction.

(25) Judicial cooperation in civil matters should be organised between Member States to encourage information for the public and professional circles and to simplify and accelerate the transmission of legal aid applications between Member States.

(26) The notification and transmission mechanisms provided for by this Directive are inspired directly by those of the European Agreement on the transmission of applications for legal aid, signed in Strasbourg on 27 January 1977, hereinafter referred to as '1977 Agreement'. A time limit, not provided for by the 1977 Agreement, is set for the transmission of legal aid applications. A relatively short time limit contributes to the smooth operation of justice.

(27) The information transmitted pursuant to this Directive should enjoy protection. Since Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data19, and Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector 20, are applicable, there is no need for specific provisions on data protection in this Directive.

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(28) The establishment of a standard form for legal aid applications and for the transmission of legal aid applications in the event of cross-border litigation will make the procedures easier and faster.

(29) Moreover, these application forms, as well as national application forms, should be made available on a European level through the information system of the European Judicial Network, established in accordance with Decision 2001/470/EC21.

(30) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission22.

(31) It should be specified that the establishment of minimum standards in cross-border disputes does not prevent Member States from making provision for more favourable arrangements for legal aid applicants and recipients.

(32) The 1977 Agreement and the additional Protocol to the European Agreement on the transmission of applications for legal aid, signed in Moscow in 2001, remain applicable to relations between Member States and third countries that are parties to the 1977 Agreement or the Protocol. But this Directive takes precedence over provisions contained in the 1977 Agreement and the Protocol in relations between Member States.

(33) The United Kingdom and Ireland have given notice of their wish to participate in the adoption of this Directive in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community.

(34) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application,

Has Adopted this Directive
Chapter I Scope and Definitions
Article 1 Aims and Scope
  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 in such disputes.

  2. It shall apply, in cross-border disputes, to civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

  3. In this Directive, 'Member State' shall mean Member States with the exception of Denmark.

Article 2 Cross-Border Disputes
  1. For the purposes of this Directive, a cross-border dispute is one where the party applying for legal aid in the context of this Directive is domiciled or habitually resident in a Member State other than the Member State where the court is sitting or where the decision is to be enforced.

  2. The Member State in which a party is domiciled shall be determined in accordance with Article 59 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters23.

  3. The relevant moment to determine if there is a cross-border dispute is the time when the application is submitted, in accordance with this Directive.

Chapter II Right to Legal Aid
Article 3 Right to Legal Aid
  1. Natural persons involved in a dispute covered by this Directive shall be entitled to receive appropriate legal aid in order to ensure their effective access to justice in accordance with the conditions laid down in this Directive.

  2. Legal aid is considered to be appropriate when it guarantees:

    (a) pre-litigation advice with a view to reaching a settlement prior to bringing legal proceedings;

    (b) legal assistance and representation in court, and exemption from, or assistance with, the cost of proceedings of the recipient, including the costs referred to in Article 7 and the fees to persons mandated by the court to perform acts during the proceedings.

    In Member States in which a losing party is liable for the costs of the opposing party, if the recipient loses the case, the legal aid shall cover the costs incurred by the opposing party, if it would have covered such costs had the recipient been domiciled or habitually resident in the Member State in which the court is sitting.

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  3. Member States need not provide legal assistance or representation in the courts or tribunals in proceedings especially designed to enable litigants to make their case in person, except when the courts or any other competent authority otherwise decide in order to ensure equality of parties or in view of the complexity of the case.

  4. Member States may request that legal aid recipients pay reasonable contributions towards the costs of proceedings taking into account the conditions referred to in Article 5.

  5. Member States may provide that the competent authority may decide that recipients of legal aid must refund it in whole or in part if their financial situation has substantially improved or if the decision to grant legal aid had been taken on the basis of inaccurate information given by the recipient.

Article 4 Non-Discrimination

Member States shall grant legal aid without discrimination to Union citizens and third-country nationals residing lawfully in a Member State.

Chapter III Conditions and Extent of Legal Aid
Article 5 Conditions Relating to Financial Resources
  1. Member States shall grant legal aid to persons referred to in Article 3(1) who are partly or totally unable to meet the costs of proceedings referred to in Article 3(2) as a result of their economic situation, in order to ensure their effective access to justice.

  2. The economic situation of a person shall be assessed by the competent authority of the Member State in which the court is sitting, in the light of various objective factors such as income, capital or family situation, including an assessment of the resources of persons who are financially dependant on the applicant.

  3. Member States may define thresholds above which legal aid applicants are deemed partly or totally able to bear the costs of proceedings set out in Article 3(2). These thresholds shall be defined on the basis of the criteria defined in paragraph 2 of this Article.

  4. Thresholds defined according to paragraph 3 of this Article may not prevent legal aid applicants who are above the thresholds from being granted legal aid if they prove that they are unable to pay the cost of the proceedings referred to in Article 3(2) as a result of differences in the cost of living between the Member States of domicile or habitual residence and of the forum.

  5. Legal aid does not need to be granted to applicants in so far as they enjoy, in the instant case, effective access to other mechanisms that cover the cost of proceedings referred to in Article 3(2).

Article 6 Conditions Relating to the Substance of Disputes
  1. Member States may provide that legal aid applications for actions which appear to be manifestly unfounded may be rejected by the competent authorities.

  2. If pre-litigation advice is offered, the benefit of further legal aid may be refused or cancelled on grounds related to the merits of the case in so far as access to justice is guaranteed.

  3. When taking a decision on the merits of an application and without prejudice to Article 5, Member States shall consider the importance of the individual case to the applicant but may also take into account the nature of the case when the applicant is claiming damage to his or her reputation but has suffered no material or financial loss or when the application concerns a claim arising directly out of the applicant's trade or self-employed profession.

Article 7 Costs Related to the Cross-border Nature of the Dispute

Legal aid granted in the Member State in which the court is sitting shall cover the following costs directly related to the cross-border nature of the dispute:

(a) interpretation;

(b) translation of the documents required by the court or by the competent authority and presented by the recipient which are necessary for the resolution of the case; and

(c) travel costs to be borne by the applicant where the physical presence of the persons concerned with the presentation of the applicant's case is required in court by the law or by the court of that Member State and the court decides that the persons concerned cannot be heard to the satisfaction of the court by any other means.

Article 8 Costs Covered by the Member State of the Domicile or Habitual Residence

The Member State in which the legal aid applicant is domiciled or habitually resident shall provide legal aid, as referred to in Article 3(2), necessary to cover:

(a) costs relating to the assistance of a local lawyer or any other person entitled by the law to give legal advice, incurred in that Member State until the application for legal aid has been received, in accordance with this Directive, in the Member State where the court is sitting;

(b) the translation of the application and of the necessary supporting documents when the application is submitted to the authorities in that Member State.

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Article 9 Continuity of Legal Aid
  1. Legal aid shall continue to be granted totally or partially to recipients to cover expenses incurred in having a judgment enforced in the Member State where the court is sitting.

  2. A recipient who in the Member State where the court is sitting has received legal aid shall receive legal aid provided for by the law of the Member State where recognition or enforcement is sought.

  3. Legal aid shall continue to be available if an appeal is brought either against or by the recipient, subject to Articles 5 and 6.

  4. Member States may make provision for the re-examination of the application at any stage in the proceedings on the grounds set out in Articles 3(3) and (5), 5 and 6, including proceedings referred to in paragraphs 1 to 3 of this Article.

Article 10 Extrajudicial Procedures

Legal aid shall also be extended to extrajudicial procedures, under the conditions defined in this Directive, if the law requires the parties to use them, or if the parties to the dispute are ordered by the court to have recourse to them.

Article 11 Authentic Instruments

Legal aid shall be granted for the enforcement of authentic instruments in another Member State under the conditions defined in this Directive.

Chapter IV Procedure
Article 12 Authority Granting Legal Aid

Legal aid shall be granted or refused by the competent authority of the Member State in which the court is sitting, without prejudice to Article 8.

Article 13 Introduction and Transmission of Legal Aid Applications
  1. Legal aid applications may be submitted to either:

    (a) the competent authority of the Member State in which the applicant is domiciled or habitually resident (transmitting authority); or

    (b) the competent authority of the Member State in which the court is sitting or where the decision is to be enforced (receiving authority).

  2. Legal aid applications shall be completed in, and supporting documents translated into:

    (a) the official language or one of the languages of the Member State of the competent receiving authority which corresponds to one of the languages of the Community institutions; or

    (b) another language which that Member State has indicated it can accept in accordance with Article 14(3).

  3. The competent transmitting authorities may decide to refuse to transmit an application if it is manifestly:

    (a) unfounded; or

    (b) outside the scope of this Directive.

    The conditions referred to in Article 15(2) and (3) apply to such decisions.

  4. The competent transmitting authority shall assist the applicant in ensuring that the application is accompanied by all the supporting documents known by it to be required to enable the application to be determined. It shall also assist the applicant in providing any necessary translation of the supporting documents, in accordance with Article 8(b).

    The competent transmitting authority shall transmit the application to the competent receiving authority in the other Member State within 15 days of the receipt of the application duly completed in one of the languages referred to in paragraph 2, and the supporting documents, translated, where necessary, into one of those languages.

  5. Documents transmitted under this Directive shall be exempt from legalisation or any equivalent formality.

  6. The Member States may not charge for services rendered in accordance with paragraph 4. Member States in which the legal aid applicant is domiciled or habitually resident may lay down that the applicant must repay the costs of translation borne by the competent transmitting authority if the application for legal aid is rejected by the competent authority.

Article 14 Competent Authorities and Language
  1. Member States shall designate the authority or authorities competent to send (transmitting authorities) and receive (receiving authorities) the application.

  2. Each Member State shall provide the Commission with the following information:

    - the names and addresses of the competent receiving or transmitting authorities referred to in paragraph 1,

    - the geographical areas in which they have jurisdiction,

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    - the means by which they are available to receive applications, and

    - the languages that may be used for the completion of the application.

  3. Member States shall notify the Commission of the official language or languages of the Community institutions other than their own which is or are acceptable to the competent receiving authority for completion of the legal aid applications to be received, in accordance with this Directive.

  4. Member States shall communicate to the Commission the information referred to in paragraphs 2 and 3 before 30 November 2004. Any subsequent modification of such information shall be notified to the Commission no later than two months before the modification enters into force in that Member State.

  5. The information referred to in paragraphs 2 and 3 shall be published in the Official journal of the European Communities.

Article 15 Processing of Applications
  1. The national authorities empowered to rule on legal aid applications shall ensure that the applicant is fully informed of the processing of the application.

  2. Where applications are totally or partially rejected, the reasons for rejection shall be given.

  3. Member States shall make provision for review of or appeals against decisions rejecting legal aid applications. Member States may exempt cases where the request for legal aid is rejected by a court or tribunal against whose decision on the subject of the case there is no judicial remedy under national law or by a court of appeal.

  4. When the appeals against a decision refusing or cancelling legal aid by virtue of Article 6 are of an administrative nature, they shall always be ultimately subject to judicial review.

Article 16 Standard Form
  1. To facilitate transmission, a standard form for legal aid applications and for the transmission of such applications shall be established in accordance with the procedure set out in Article 17(2).

  2. The standard form for the transmission of legal aid applications shall be established at the latest by 30 May 2003.

The standard form for legal aid applications shall be established at the latest by 30 November 2004.

Chapter V Final Provisions
Article 17 Committee
  1. The Commission shall be assisted by a Committee.

  2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply.

  3. The Committee shall adopt its Rules of Procedure.

Article 18 Information

The competent national authorities shall cooperate to provide the general public and professional circles with information on the various systems of legal aid, in particular via the European Judicial Network, established in accordance with Decision 2001/470/EC.

Article 19 More Favourable Provisions

This Directive shall not prevent the Member States from making provision for more favourable arrangements for legal aid applicants and recipients.

Article 20 Relation With Other Instruments

This Directive shall, as between the Member States, and in relation to matters to which it applies, take precedence over provisions contained in bilateral and multilateral agreements concluded by Member States including:

(a) the European Agreement on the transmission of applications for legal aid, signed in Strasbourg on 27 January 1977, as amended by the additional Protocol to the European Agreement on the transmission of applications for legal aid, signed in Moscow in 2001;

(b) the Hague Convention of 25 October 1980 on International Access to Justice.

Article 21 Transposition Into National Law
  1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than 30 November 2004 with the exception of Article 3(2)(a) where the transposition of this Directive into national law shall take place no later than 30 May 2006. They shall forthwith inform the Commission thereof.

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    When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such a reference shall be laid down by Member States.

  2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 22 Entry Into Force

This Directive shall enter into force on the date of its publication in the Official journal of the European Communities.

Article 23 Addressees

This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community.

Done at Brussels, 27 January 2003.

For the Council

President

G. PAPANDREOU

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Corrigenda

Corrigendum to Commission Regulation (EC) No 2031/2001 of 6 August 2001 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff

(Official journal of the European Communities L 279 of 23 October 2001)

On page 753, in Annex 2, CN code 0809 20 05, against the text less than euros 42, 2 (?)', in the third column:

for: '12,5 + 27,4 euros/100 kg/net',

read: '12 + 27',4 euros/100 kg/net'.

Corrigendum to Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes

(Official journal of the European Communities L 26 of 31 January 2003)

In the contents on the cover and on page 41 in the title,

for: 'Council Directive 2002/8/EC ...',

read: 'Council Directive 2003/8/EC ...'.

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[1] The views expressed in the text that follows are the author's personal views and are not to be taken in any way to represent the position of Her Majesty's Government.

[2] Presidency conclusions, Tampere European Council, 15 and 16 October 1999, paragraph 30.

[3] Following the entry into force of the Treaty of Nice, measures provided for in Article 65, with the exception of aspects relating to family law, are now adopted by the co-decision procedure under Article 251 of the EC Treaty.

[4] OJ C 103 E, 30.4.2002, p. 368.

[5] OJ C 273 E, 14.11.2003.

[6] The rules on domicile are, according to Article 2(2), determined by reference to Article 59 of the Brussels I Regulation (Council Regulation (EC) No 44/2001 of 22 December 2000). Essentially, the Member State where the court is sitting and which is seised of the application for legal aid should, under Article 59(2) of that regulation, apply the law of the Member State where the applicant claims to be domiciled in order to determine whether he is in fact domiciled there.

[7] The directive offers no definition of the terms 'manifestly unfounded' or 'access to justice is guaranteed', effectively leaving it to the Member States to apply their national law on these matters. The jurisprudence of the European Court of Human Rights relating to Article 6 of the European Convention on Human Rights may also be considered relevant in this regard.

[8] Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ L 174, 27.6.2001, p. 1).

[9] Recital 26 in the preamble to the directive notes that the European agreement on the transmission of applications for legal aid, signed in Strasbourg on 27 January 1977, was the direct inspiration for the notification and transmission mechanism provided for in Chapter IV of the directive, although that agreement does not include the 15-day time limit provided for in Article 13(4) of the directive.

[10] Article 16 requires the form to be established by 30 November 2004. It will be drawn up by the Commission, assisted by a committee operating under the advisory procedure in Articles 3 and 7 of Decision 1999/468/EC.

[11] The wording of this recital suggests that the national application forms will continue to be available for use in applications under the directive even after the standard form is established.

[12] Commission decision of 18 June 2003 establishing a form for the transmission of legal aid applications under Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes.

[13] The website of the European Judicial Network provides easy access to basic information on the legal aid system of each Member State (http://europa.eu.int/comm/ justice_home/ejn/index, htm).

[14] The fact that the directive's procedures are based on the European agreement should maintain consistency between the system applied by Member States between themselves under the directive and that applied in relation to third States. At the time of writing, all Member States except Germany are parties to the 1977 agreement.

[15] OJ C 103 E, 30.4.2002, p. 368.

[16] Opinion delivered on 25 September 2002 (not yet published in the Official Journal).

[17] OJ C 221, 17.9.2002, p. 64.

[18] OJ L 174, 27.6.2001, p. 1.

[19] OJ L 281, 23.11.1995, p. 31.

[20] OJ L 24, 30.1.1998, p. 1.

[21] OJ L 174, 27.6.2001, p. 25.

[22] OJ L 184, 17.7.1999, p. 23.

[23] OJ L 12, 16.1.2001, p. 1; Regulation as amended by Commission Regulation (EC) No 1496/2002 (OJ L 225, 22.8.2002, p. 13).