In its latest newsletter the Council of Bars and Law Societies of Europe (CCBE) is reporting on several interesting matters regarding European initiatives on digitalisation of justice and related matters.
- Communication by the European Commission on the digitalisation of justice.
- CCBE position paper on the e-CODEX proposal.
- CCBE position paper on the Digital Services Act and the Digital Markets Acts.
- High-Level Conference on e-Justice
They mention amongst others that the electronic signature system eIDAS is not yet functioning properly and warn against the risk that human rights are harmed through use of digital systems. The news shows the growing importance of European legislation in the area of justice.
CCBE comments on the Communication on the Digitalisation of Justice in the EU
The CCBE adopted its comments on this Communication which was presented by the European Commission in December 2020. The CCBE calls for the effective application of the eIDAS regulation, as many national authorities refuse to verify electronic signatures from another Member State. In order to provide EU-wide legal certainty, the CCBE points out the necessity to have EU- wide minimum standards to ensure that national e-justice systems are able to guarantee rights to a fair trial (structured monitoring of national e-justice systems, development of a process to test national e-justice systems). Regarding the use of Artificial Intelligence in the Justice field, the CCBE stresses the need to uphold minimum safeguards and principles to counter the potential risks and biases (identification of the use of AI; non delegation of the judge’s decision- making power; the possibility to verify the data input and reasoning of the AI tool; the possibility to discuss and contest AI outcomes; the neutrality and objectivity of AI tools). Regarding the use of videoconferencing, the CCBE calls to develop EU mandatory minimum standards as to the technical arrangements that should be in place for the use of videoconferencing to ensure as much as possible a true- to-life hearing experience including full communication/interaction of all the parties to the procedure with the examined person. Such standards should also ensure protection of professional secrecy and legal professional privilege during the videoconferencing session.
CCBE Position paper on the e-CODEX proposal
The CCBE adopted its position paper on the proposal for a Regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system) and amending Regulation (EU) 2018/1726 (the “e-CODEX proposal”). The CCBE, as a member of the current managing consortium of e-CODEX, strongly welcomes this proposal which establishes a legal basis of the e-CODEX system and entrusts its operational management to eu- LISA. In its paper, the CCBE makes comments regarding the operating conditions of e-CODEX access points, stressing that the proposal does not contain clear and concrete provisions regarding the operating conditions of access points. Also, it does not provide for the financing conditions of entities operating an e-CODEX access point. Furthermore, the CCBE welcomes the involvement of legal professions and stakeholders in the governance and management of the system. However, the proposal needs to be clarified regarding the conditions and the effectiveness of such necessary involvement. Moreover, the CCBE asks for clarifications on how the proposed governance structure of e-CODEX will effectively ensure the independence of the judiciary in practice. Indeed, the regulation might need stronger requirements to ensure this principle. Finally, the CCBE considers that the provisions of the proposal are not adequate when it comes to the protection of fundamental rights. Explicit references should therefore be included as regards the applicability of the Charter of fundamental rights of the EU.
CCBE position paper on the Digital Services Act (DSA) and the Digital Markets Acts (DMA)
Both the DSA and the DMA were presented by the European Commission in December 2020. Some aspects of the DSA are of particular interest to lawyers, such as the definition of “online illegal content” which can also include unauthorised practice of law. Also, according to the proposal, Bars can be considered as “trusted flaggers”. Regarding the implementation of alternative dispute resolution mechanisms, the DSA should provide for more developed conditions of clear and fair rules of procedures and should not deprive the parties to be represented or assisted by a lawyer. Furthermore, the CCBE stresses that professional secrecy and the protection of rights to a fair trial should be effectively ensured in the procedures set up by the proposal before the national digital coordinators and the Commission. The CCBE considers that the same guarantees should apply to all intermediary service providers, whether they are small or very large online platforms, and regardless of whether the procedure is conducted by national authorities or by the Commission. Regarding the DMA, the CCBE points out that the proposal should provide for the Commission to ensure a fair and impartial procedure before taking any final decision, including the right to be heard of the persons concerned, and the right to have access to the file, while respecting confidentiality, professional secrecy and legal professional privilege, as well as the obligation to give meaningful reasons for the decisions.
More information on the CCBE position paper available here.
High-Level Conference on e-Justice
The CCBE President, Margarete von Galen, addressed the issue of the digitalisation of Justice in Europe and the importance of the role of lawyers at the High-Level Conference “For a People-centred e-Justice” organised under the Portuguese Presidency of the Council of the EU. She stressed that digitalisation efforts should stay focused on improving the quality of justice systems and are not only introduced to achieve efficiency gains or cost savings. She also highlighted the importance of structural dialogue and collaboration among all justice stakeholders, including lawyers. For this purpose, she proposed the establishment of a kind of High-Level Expert Group on the digitalisation of justice and the use of AI in justice as advisory body to the European Commission.
Read her speech here.