Ensuring smoother electronic communication in cross-border judicial cooperation in civil, commercial and criminal matters is the aim of a recently-published regulation on the digitalisation of cross-border judicial cooperation and access to justice: Regulation (EU) 2023/2844. Among other things, the new regulation amends the EU’s Insolvency Regulation (EIR 2015).
Published at the end of 2023, the Regulation 2023/2844 (with its accompanying directive) takes a step towards the digitalisation of European procedures. Secure, reliable and timely communication between courts and competent authorities should shape the principle of mutual trust between the judicial systems of EU member states. This requires efficient cross-border judicial cooperation, which should not impose excessive administrative burdens. It is also crucial that such communication and cooperation is resistant to force majeure. European law provides a multitude of instruments to improve judicial cooperation in cross-border civil, commercial and criminal matters. Some of them concern communication between authorities, including in certain cases with the EU justice and home affairs agencies and bodies.
However, many of these instruments do not provide the option for communication to take place digitally. And if the option of communicating digitally exists, then there lurks the problem of a lack of secure and reliable digital communication channels, which can lead to the non-recognition of electronic documents, signatures and seals. The COVID-19 pandemic showed that force majeure can seriously affect the normal functioning of the legal systems of the EU member states. During that crisis, many national courts were unable to continue their regular activities due to the spread of the virus. That formed the basis of a proposal from the European Commission in December 2021 for a “Digitalisation Regulation” and a proposal for an accompanying “Digitalisation Directive”, both of which were published in the EU’s Official Journal at the end of December 2023.
In its core, Regulation 2023/2844 and its Directive introduce harmonized rules on digitalisation. They focus on improving access to justice and the efficiency and resilience of the communication flows inherent in cooperation between judicial and other competent authorities in cross-border cases in the EU, by allowing citizens and their legal representatives to communicate with authorities during cross-border procedures in the EU via a European electronic access point. The point will be used, for example, to initiate claims and to send and receive necessary information. Authorities will also be able to communicate and exchange case data among themselves through secure, reliable digital channels.
This system of new rules will make it possible (i) for parties and other persons concerned to participate in hearings in civil, commercial and criminal matters via videoconference or other remote communication technologies, (ii) for natural or legal persons, or their representatives, to communicate with the competent authorities, (iii) for documents with an electronic signature or seal to be recognised, and (iv) for fees to be paid electronically. The regulation will come into effect on 16 January 2024. Article 26 of the regulation states that it shall apply from 1 May 2025.
The Digitisation Regulation also has some changes in store for the EIR 2015.
The first sentence of Article 42(3), “The cooperation referred to in paragraph 1 may be implemented by any means that the court considers appropriate”; will be replaced by: “The cooperation referred to in paragraph 1 of this Article shall be implemented in accordance with Article 3 of Regulation (EU) 2023/2844 …”.
A similar provision will be included in the (identical) first sentence of Article 57(3).
Meanwhile, the first sentence of Article 5, “Any foreign creditor may lodge claims in insolvency proceedings by any means of communication, which are accepted by the law of the State of the opening of proceedings”; will be replaced by the following text: “Any foreign creditor may lodge claims in insolvency proceedings by any means of communication which are accepted by the law of the State of the opening of proceedings or by the means of electronic communication provided for in Article 4 of Regulation (EU) 2023/2844.”
These are just modest steps. In my blog https://bobwessels.nl/blog/2024-02-doc1-where-is-eu-insolvency-law-heading-in-2024/ I have given my opinion why the European Commission will have to be much more proactive in its ongoing digitisation process.
Reference
Regulation (EU) 2023/2844 of the European Parliament and of the Council of 13 December 2023 on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation (OJ L, 2023/2844, 27.12.2023, ELI: http://data.europa.eu/eli/reg/2023/2844/oj )
This is a slightly adapted version of a regular column Bob Wessels is writing for Global Restructuring Review (GRR) on the topic of cross-border restructuring and insolvency in a European context. GRR is a subscription-only publication and the column appeared in GRR on 15 January 2024. See www.globalrestructuringreview.com