Legal aid: European Commission Deliberations

The Commission (Directorate General on Justice and Home Affairs) issued a Green Paper on cross-border legal aid in February 2000 as part of its policy on improving access to justice. After considering responses, the Commission issued a discussion document (footnote one) and held a consultation hearing on 20 February 2001, the main points of which are summarised in this paper.

National rules on legal aid vary, sometimes widely, so moves toward harmonisation are difficult. The Commission is also constrained by the restriction that its harmonising jurisdiction is perhaps limited to cross-border legal aid issues: it would not wish to interfere with internal national rules, at least for the present. However, the emergence of rules on cross-border provision may inevitably influence a convergence of national rules, possibly because member states may not discriminate between their own nationals and nationals of other member states. (footnote 2) It was recognised by member states at the hearing that the central issue is providing access to justice for poor and lower middle class people.

Certain central issues were discussed at the hearing:

1. Should the Commission establish a minimum standard of legal aid provision, which member states would be obliged to provide? Some generalised provisions are already contained in the EU Charter of Fundamental Rights. Member states were divided on this issue, but the Commission stated that it intends to publish a proposal on the objectives for a trans-border legal aid system by summer 2001. This will be based on case law of the European Court of Human Rights, which interpreted Article 6 of the European Convention of Human Rights as requiring a basic minimum availability of legal aid.

2. Not all member states have a merits test for applications (footnote three), but there is no doubt that those merits tests that exist will continue to apply, although they vary.

3. Rules on financial eligibility differ considerably between member states.

There are also some technical issues:

1. There was general agreement amongst member states that the national rules on legal aid should be transparent and that reasons should be given for refusal of funding applications.

2. To take account of the situation that costs might be higher in the state where the litigation is situated than in the applicant's state, the simplest solution would be that costs should be paid for where they are insured, although there is already some provision in the Strasbourg Agreement and the consensus seemed to be that there might be some splitting of costs between the member states [?]

3. More publicity will be given, perhaps through the Civil Judicial Network, to existing national databases of lawyers who accept legal aid work.

4. Rules on non-discrimination against Community nationals and third country nationals. This issue is already covered in the Hague Convention 1980 but not all member states have ratified it.

5. Should legal aid be available to legal persons, such as corporate entities and consumer or trade associations? It is in Germany, partially in France, but not in most other states. The UK and the Council of Europe stated that in many situations consumer organisations are wealthy and able to support actions, but several states are concerned that small and medium sized companies do not have resources to fight a good case, particularly in view of the rules limiting recovery of legal costs in some states.

6. The UK argued in favour of conditional fee agreements but a number of other member states made clear that they have grave reservations about this system or contingency fees, notably in relation to conflicts of interest between lawyers and clients. The Commission made clear that no such system would be imposed on states or lawyers and it will approach the issue cautiously, with further consultation.

7. It was noted that member states' rules vary considerably on the "loser pays costs" rule and recoverability. Some member states encourage citizens to hold insurance for legal costs but the Commission is unlikely to take steps on this issue.

Comments

Consideration of these issues is part of the European Commission's programme on increasing consumer access to justice. The central problem is that the level of access to justice varies enormously between member states: the UK and Sweden have spent considerable sums from national funds on legal aid but have decided to deconstruct their legal aid systems and to provide alternatives by means of conditional fees and mandatory legal expenses insurance respectively. Those governments that do not spend significant sums on legal aid are resistant to any pressure that might be applied by the Commission for them to spend more. There is, therefore, difficulty in defining a unified Community policy on this subject, given strong differences of opinion between the Commission and various member states. Accordingly, proposals by the Commission in relation to the development of a common approach towards legal aid are taking place carefully and tentatively, and are restricted to improving the rules on cross-border provisions, which are probably an insignificant problem in practice.

This issue does, however, have important potential implications in relation to the long-term effects that might be created on either encouraging or discouraging speculative and costly litigation.

For further information, please contact Chris Hodges by e-mail at [email protected] or by telephone on +44 (0)20 7367 2738.

Footnotes

Footnote one

Reflection document for the hearing of 20 February 2001 on "Legal Aid in Civil Matters: The Problems confronting the Cross-Border Litigant", 14 February 2001.

Footnote two

See cases noted in the Green Paper, supra, section 2.

Footnote three

France, for example, does not