Commission Green Paper on Civil Legal Aid - February 2000

United Kingdom

Background: political and consumer

The rules of EU member states on what may constitute "legal aid" vary considerably, for example in relation to:

  • free or low-cost legal advice or court representation by a lawyer;
  • exemption from other costs, such as court fees;
  • financial assistance in relation to litigation costs, such as lawyers' costs, court fees,
  • witness expenses, and the liability of a losing party to reimburse winners' costs.

In recent years, the European Commission's former Directorate-General XXIV has included within its Consumer Action Plan methods of increasing consumers' access to justice. In reorganising the Commission in 1999, President Prodi created a Directorate-General on Justice and Home Affairs (DG JAI), which has issued a Green Paper on Legal Aid in Civil Matters: The Problems Confronting the Cross-Border Litigant on 9 February 2000 (COM (2000) 51 final). The Green Paper is available on dg15/en/update/consumer/99-580.htm. Comments are requested before 31 May 2000.

The Commission's cross-border jurisdiction

In this project, DG JAI seeks to base its jurisdiction at Community level on the Tampere meeting of the Council on 15 and 16 October 1999 on the creation of an area of freedom, security and justice in the European Union and the Council's invitation for the Commission to make proposals to establish minimum standards ensuring an adequate level of legal aid in cross-border cases. The Green Paper therefore seeks to identify a number of instances in which there are problems of access to legal aid for the cross-border litigant, particularly instances of discrimination against Community nationals on grounds of residence or nationality, or impediments engendered by the extra costs of cross-border litigation and by differences in the national systems as regards financial thresholds and examination of the merits of an application for legal aid.

The suggested solutions

The possible solutions to these problems which are mooted in the Green Paper include the following:-

  • the Commission asserts that the confusing patchwork of national laws in relation to entitlement to legal aid are likely to contain a number of provisions which would be struck down by the European Court as being contrary to Article 12 of the EC Treaty which prohibits discrimination on grounds of nationality. The Commission also notes that only a minority of member states have ratified the 1990 Hague Convention on International Access to Justice, and urges all member states to ratify the Convention;
  • the Commission suggests that clarification that consumers' associations qualify for legal aid would have a major impact on such associations' use of Directive 92/27/EC on cross-border injunctions;
  • whilst accepting that the financial criteria for eligibility of legal aid may validly differ on the basis of varying costs of litigation and income levels between member states, the Commission decries different policies on access to justice and suggests that the criteria of the country of litigation should apply but together with adjustment by means of a "corrective factor" or "waiting" which would take account of the differences in the cost of living between the two member states concerned or, alternatively, to apply a more flexible and objective test of taking into account both the applicant's disposable income and the likely cost of the lawsuit;
  • the Commission calls for greater transparency in relation to merits tests, such as under the 1977 Agreement of the Council of Europe on the Transmission of Applications for Legal Aid, plus an obligation for authorities to give detailed reasons for a refusal to grant legal aid based on grounds that the merits test had not been satisfied (the Strasbourg Agreement - this has been ratified by all EU states except Germany);
  • the Commission proposes the creation of databases of legal professionals, indicating the courts before which the lawyer is authorised to plead, his areas of expertise and of experience, the languages in which he is competent or fluent and whether he is available (voluntarily or automatically) to handle cases funded on a legal aid basis;
  • in order to facilitate technical procedures for applying for legal aid abroad, the Commission suggests that either the Strasbourg Agreement mechanism should be extended or that more ambitious and integrated action should take place at EU level, such as use of standard forms and encouraging new transmission technology similar to the Convention on the Service of Judicial and Extra Judicial Documents in Civil or Commercial Matters of 26 May 1997 (OJ C 261 of 27 August 1997) and now a proposed draft Regulation.

    Affordability problems: alternative mechanisms

    The Commission notes that some member states have found that a well-performing system of legal aid is costly and that they have been experimenting with alternative means to ensure that justice is affordable. Particular alternatives include the UK moves towards conditional fees and the wide availability in Germany and Sweden of legal expenses insurance. In relation to the conditional fee system, the Commission notes that the litigant could still be exposed to the risk of having to pay the other party's costs if he loses. The Commission omits to mention the UK solution of insurance policies for the costs risk. The Commission does, however, comment that "there would also appear to be little incentive, other than creating goodwill, for a lawyer to accept a case on this basis unless he was reasonably confident of winning". Some will respond by asking whether anything is wrong with a system which discourages bringing cases which have poor chances of success: that problem was at the heart of the UK's decision to stop its vastly increased demand-led expenditure on legal aid and move to a conditional fee system in which lawyers have to undertake their own objective risk assessments so as not to waste funds on poor cases.

    Forthcoming consideration of legal expenses and lawyers' fees

    The Commission is to publish a Working Paper on the recovery of legal expenses and lawyers fees later in 2000.