Considerations on COM(2021)760 - Amendment of a Council Directive, Council Framework Decisions and a Directive, as regards digitalisation of judicial cooperation

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dossier COM(2021)760 - Amendment of a Council Directive, Council Framework Decisions and a Directive, as regards digitalisation of judicial ...
document COM(2021)760 EN
date December 13, 2023
 
table>(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.
(2)Facilitating judicial cooperation between Member States is among the main objectives of the Union’s area of freedom, security and justice enshrined in Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU).

(3)For the purposes of enhancing judicial cooperation in civil, commercial and criminal matters with cross-border implications, legal acts of the Union providing for communication between competent authorities, including Union agencies and bodies, should be complemented by conditions for conducting such communication through digital means in a manner that ensures the protection of fundamental rights as provided for in the Charter of Fundamental Rights of the European Union, especially those enshrined in Title VI, in particular Article 47 on the right to an effective remedy and to a fair trial. Those conditions should in no way undermine the protection of procedural rights that are essential for the protection of those fundamental rights, in accordance with Union law.

(4)In order to modernise and enhance judicial cooperation and facilitate access to justice, Regulation (EU) 2023/2844 of the European Parliament and of the Council (3) has been adopted.

(5)For the purposes of ensuring that the objectives of Regulation (EU) 2023/2844 are fully attained, and of aligning existing Union legal acts in civil, commercial and criminal matters with that Regulation, it is necessary to amend Directives 2011/99/EU (4) and 2014/41/EU (5) of the European Parliament and of the Council, Council Directive 2003/8/EC (6) and Council Framework Decisions 2002/584/JHA (7), 2003/577/JHA (8), 2005/214/JHA (9), 2006/783/JHA (10), 2008/909/JHA (11), 2008/947/JHA (12), 2009/829/JHA (13) and 2009/948/JHA (14).

(6)The amendments provided for in this Directive seek to ensure that cross-border communication between authorities takes place in accordance with the rules and principles set out in Regulation (EU) 2023/2844. Pursuant to that Regulation, communication between competent authorities of different Member States and between a national competent authority and a Union agency or body under the legal acts in the area of judicial cooperation in criminal matters amended by this Directive should, as a rule, be carried out through a decentralised IT system. In particular, the decentralised IT system should, as a rule, be used for the exchange of forms provided for by the legal acts in the area of judicial cooperation in criminal matters amended by this Directive and for all other official communication under those legal acts which has to be carried out in written form, for example for the purposes of keeping case files of competent authorities. In cases where one or more of the exceptions provided for in Regulation (EU) 2023/2844 apply, namely where the use of the decentralised IT system is not possible or appropriate, it should be possible to use other means of communication as specified in that Regulation. For the purposes of Framework Decisions 2005/214/JHA, 2006/783/JHA, 2008/909/JHA, 2008/947/JHA and 2009/829/JHA and Directive 2014/41/EU, where those legal acts provide for the communication between authorities to be carried out by any means or by any appropriate means, such authorities should have discretion as to which method of communication to use.

(7)Given that this Directive sets out amendments to rules already transposed into the national legal order of the Member States, it should also have specific provisions on the transposition of those amendments. Those transposition provisions should be in line with the implementation timeline provided for in Regulation (EU) 2023/2844.

(8)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union (TEU) and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

(9)In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Directive and is not bound by it or subject to its application.