Cross-border litigation enters the digital era | In Principle

Judicial cooperation between the member states in cross-border civil, commercial and criminal matters is vital for integration of European markets and creation of a space of freedom, security and justice within the European Union. To streamline access to justice, member states have implemented their own IT solutions, in turn creating a need to unify these systems at the EU level. This is the aim of the EU’s Digitalisation Regulation (2023/2844).

The Digitalisation Regulation (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) covers digitalisation of judicial proceedings across three main areas:

• Communications between the competent authorities of the member states concerning mutual legal assistance, via an IT system prepared for this purpose
• Taking the testimony of witnesses in other countries by videoconference—in civil and commercial matters generally without limitation, and in criminal cases with the consent of the country where the witness is located (this applies only to witnesses, as it has not been decided yet to extend this coverage to the parties)
• Further changes aimed at universally allowing parties to use electronic signatures and electronic payment of fees in judicial proceedings.

Cross-border cooperation between legal authorities

The EU has already created a framework for functioning of a range of procedures for judicial cooperation in cross-border cases. However, in practice these procedures have often proved ineffective. The main problems are the need to exchange pleadings in paper form by the authorities of the member states, the need to translate documents into other official languages of the EU, and the lack of adequate communication between authorities at the operational level. These difficulties have made judicial cooperation time-consuming and ineffective.

The digital transition should raise the efficiency, quality and transparency of judicial systems, increase the effectiveness of judicial proceedings, and consequently facilitate access to justice in the EU.

A step toward digitalisation of judicial cooperation

With these aims in view, Regulation 2023/2844 was adopted to:

• Bridge gaps in the digitalisation of systems in the member states
• Regulate the means of communication between the competent authorities of the member states, and between national authorities and EU authorities
• Afford EU citizens effective access to justice
• Raise the efficiency of cross-border legal cooperation, and
• Unify cross-border cooperation procedures.

Regulation 2023/2844 applies to civil, commercial and criminal matters, which in itself is an innovative approach. Before, most of the EU’s legal acts concerning cross-border judicial cooperation applied to cases of only one type. This time the European lawmakers decided to address three types of cases in one act.

A new model for communications between authorities

The most important element of the new regulation is the establishment of a clear, uniform digital model for communication between the authorities of the member states, and between national authorities and authorities or agencies of the European Union. This communication is to be conducted entirely via a decentralised IT system. The same system can also be used for the internal needs of the member states, i.e. between a member state’s own authorities.

From a technical perspective, this system is essentially designed to be a network of IT systems and interoperative access points linking the judicial authorities of the member states with the competent authorities and agencies of the EU. Stakeholders are to have access to the network via a European electronic access point.

The decentralised system should be used by default, and authorities will be able to communicate outside of the system only in exceptional circumstances, when transmission via the system is not possible due to disruption of the system, the physical or technical nature of the information being transmitted, force majeure, or when use of the system is deemed inappropriate in the specific situation. In those instances, information is to be exchanged based on the relevant templates under Regulation 2023/2844.

The new model for communication between authorities concerns the communications provided for in judicial cooperation governed by the EU laws listed in the annexes to Regulation 2023/2844: Annex I (civil and commercial cases), listing 13 different EU regulations and directives, and Annex II (criminal cases), listing 11 directives, regulations and Council framework decisions.

European electronic access point

Regulation 2023/2844 also establishes a European electronic access point for streamlining communications with the competent authorities in civil and commercial matters (i.e. excluding criminal matters). Via the European e-Justice Portal, natural and legal persons will be able to communicate with the competent authorities in matters indicated in Regulation 2023/2844, such as:

• Cases related to the European Enforcement Order for undisputed claims
• Cases seeking issuance of a European Order for Payment
• Cases under the European Small Claims Procedure
• Cases involving recognition or enforcement of rulings under EU provisions, particularly the Brussels I-bis Regulation (1215/2012)
• Procedures involving issuance, rectification and withdrawal of certain certificates.

At the European electronic access point, natural and legal persons will find information on their right to legal aid, including in cross-border proceedings. Via the access point, it will be possible to file claims, launch requests, send and receive procedurally relevant information, communicate with the competent authorities, and be served with judicial or extrajudicial documents. Significantly, the access point should allow these actions to be made effectively regardless of the sometimes conflicting national requirements as to form, language and representation.

However, electronic communications will be limited by the condition that the interested party consents to use of the European electronic access point. For now, any consent will apply only to the specific procedure or proceeding in which consent is granted. It will be necessary to consent separately for purposes of communication and for service of documents.

Videoconference hearings

The steadily growing number of cross-border cases is making videoconferencing an increasingly attractive solution for hearing the parties—faster, easier, and much cheaper than in-person.

But conducting videoconferences in cross-border cases poses many challenges. First, there are issues of technology and infrastructure. Second, many member states do not have a proper legal framework in this respect. Third, it is a challenge to reconcile the efficiency of cross-border procedures with the principle of state sovereignty and the territoriality of criminal law, under which each state exercises exclusive authority over persons in its territory.

Regulation 2023/2844 offers a partial response to these challenges, in civil and commercial matters. At the request of a party (or, where provided under national law, at the authority’s own initiative), the competent authority shall decide on conducting the hearing by videoconference or other distance communication technology. The decision to hold remote hearings shall be made based on the availability of the technology, the opinion of the parties on the use of the technology, and the appropriateness of using the technology. This solution is a rule covering all cross-border civil and commercial proceedings in the European Union.

It is different in criminal cases, where state sovereignty in hearing the parties, and the principle of territoriality, plays a key role. The range of cases in which remote hearing may be ordered under the regulation is limited to cases involving:

• Issuance of a European Arrest Warrant
• Recognition of criminal judgments
• Recognition of decisions on supervision of probation measures and alternative sanctions
• Recognition of decisions on supervision measures as an alternative to provisional detention
• European Protection Orders
• Recognition of freezing orders and confiscation orders.

The procedure for conducting remote hearings in criminal cases is also much more complicated. The state where the proceeding is conducted will have to file a request to conduct the hearing with the competent authority in the state where the person affected by the order is present. This appears to be another bow to protection of the member states’ sovereignty. This mechanism also meets the expectations of countries that have adopted “blocking statutes” (such as France) limiting the need for national entities to comply with foreign regulations by transmitting information, documents or evidence to foreign courts or administrative bodies.

Under Regulation 2023/2844, the requested competent authority should approve the request to conduct a remote hearing if the circumstances of the case justify the use of such technology and—crucially—the person affected by the order consents. In this context, the regulation stresses the right of the suspect or accused to consult with defence counsel, as well as respect for all of their procedural rights. For these reasons, the ability to conduct remote hearings may be greatly restricted in criminal cases.

It can be expected that starting 1 May 2025, the authorities of EU member states will more frequently and more willingly conduct hearings in the form of videoconferences in civil and commercial cases, and also, more narrowly, in criminal cases.

Other digital tools

In remote hearings, electronic communications will be covered by the rules for trust services established by the eIDAS Regulation (910/2014). Documents transmitted between authorities via electronic communications must bear a qualified electronic seal or qualified electronic signature. In turn, documents transmitted to the authorities via the European electronic access point will require electronic identification assuring a high level of security (e.g. a trusted profile) or a qualified electronic signature.

Documents transmitted via electronic communications will have the same legal effect as documents transmitted by traditional means under the procedures provided for in EU law.

An additional feature of the regulation is the possibility of electronic payment of court fees. In the case of cross-border proceedings, this possibility should also be ensured via the European electronic access point.

When will the changes launch?

Implementation of these changes will be spread out over time. Regulation 2023/2844 applies from 1 May 2025, but the provisions on electronic communications will apply from the first day of the month following the period of two years from entry into force of the corresponding implementing acts establishing the decentralised IT system for judicial cooperation governed by each of the legal acts listed in annexes I and II to the regulation.

Based on the timetable indicated in the Digitalisation Regulation, adoption of the implementing acts is spread out over four years. The first implementing acts are to be adopted by 17 January 2026 and the last by 17 January 2029.

Filip Olszówka, Paulina Witka, Dispute Resolution & Arbitration practice, Wardyński & Partners