New deal rescues law papers exchange plan

Date: 16/01/1997

By Mark Turner

PLANS to improve the flow of legal documents between member states have been pulled back from the brink, after fears that the project was doomed.

Attempts to get agreement on a draft convention which would allow local authorities to send civil or commercial documents directly to each other bypassing central government authorities failed at a meeting of EU justice ministers late last year.

But France and Spain have gone ahead with a bilateral deal which will have the same effect, stressing that they will not be held back by the rest of the Union. And recent talks between EU ambassadors suggested a way round what was in effect a symbolic sticking point standing in the way of a Union-wide accord.

Should the convention be agreed by ministers, it would replace a similar instrument, dating back to 1965, set up by a civil law body called The Hague Conference.

But while most member states insisted the new convention should stand alone, the Dutch refused to accept a complete departure from The Hague text, which includes important guarantees of a defendant's rights in court proceedings.

Following a compromise reached late last year, the EU document will refer to two key articles in The Hague Conven-tion and reprint them in their entirety.

“This is a very strange article in legal terms, but it does the job,” explained a Brussels official.

“The link with The Hague Convention is preserved, but since the important articles are copied out, the new convention is completely autonomous. It is more symbolic than anything else.”

Diplomats now hope for agreement on the EU convention in the first half of this year.

Under the 1965 convention, when legal documents are transmitted from one signatory to another they go via central authorities in national capitals.

This allows national governments a degree of control over the way international requests are handled.

But increases in intra-EU traffic have led to a massive rise in the number of documents sent across borders including written judgements, court case summaries and 'extra-judicial' documents such as notaries' letters leading to unacceptable delays. “While governments claim that it takes them only two to three days to process requests for information, in practice we have seen delays of up to four years,” said one official.

“This is a question of access to justice; at the moment, EU citizens are being short-changed.”

Under the draft text, governments would allow direct contacts between decentralised authorities, a measure which administrators hope will considerably speed up proceedings.

The UK, Sweden, Finland, Portugal and Greece would, however, deposit a special statement explaining that they still felt a need for central control, as they claim decentralisation would make things even less efficient.

Although final agreement has not been reached, that statement would probably need to be renewed every five years under the terms of the convention. And even within a decentralised system, countries would accept the need for a central authority to deal with any hiccups.

Final decisions now need to be taken as to what degree of jurisdiction the European Court of Justice should have over the convention and how the 'date of service' when texts are sent and received should be defined.

Nevertheless, hopes are now considerably higher that a deal will be struck following the breakthrough on the 1965 convention issue.

“Everyone had thought this was a failure, but the way ahead seems to be open once more,” said a Brussels official.