The role of “better law-making” in supporting the recovery and resilience process in the member states in post-pandemic, as well as that of “better regulation”, is becoming extremely important. Effective EU legislation, which occupies already about 70 per cent of the member states’ legal order, is vital both for citizens and SMEs. The Commission is stepping up efforts to simplify EU legislation, reduce its burden and cut red tape, while making better use of regulations in supporting sustainability and digitalisation; the latter becomes a new agenda for most EU states in legal transformation.
The European “joint roadmap for recovery-plan”, approved by the European Council in April 2020, recognized digital transformation (together with the green transition) as having a central and priority role in the member states’ economy modernisation. Thus, e.g. the Commission Communication of 27 May 2020 on “Repair and Prepare for the Next Generation” reiterated that the digitalisation of justice systems can improve access to justice and the operation of the business environment.
“Modernizing” legal systems in the states through extensive digitalisation is fundamental for both tackling current challenges and being prepared for the perspective changes in growth patterns and SMEs. In short, present post-pandemic has shown that modern governance and legal instruments have to be ready for any critical situations and unexpected future: as Winston Churchill once said: “a pessimist sees the difficulty in every opportunity, while an optimist sees the opportunity in every difficulty”.
More on the European “joint road to recovery” in: https://www.consilium.europa.eu/media/43384/roadmap-for-recovery-final-21-04-2020.pdf
The EU Justice Scoreboard presents an annual overview of indicators on the efficiency, quality and independence of justice systems with a purpose to assist the member states in improving the effectiveness of their national justice systems by providing objective, reliable and comparable data. Reference to: https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/eu-justice-scoreboard_en
Towards EU’s legal efficiency: four main directions
In April 2020, the Commission presented a Communication on better regulation called “Joining forces to make better laws”, which focused on four main goals:
=Improving the way the governance (both in the EU and the states) is consulting the public and stakeholders to make it easier to provide the input through simpler questionnaires and a single ‘call for evidence’ via e.g. the EU’s “Have your Say” portal;
= Boosting transparency, by improving access to the evidence behind every European legislative proposal, including by setting up a common evidence register, the Joint Legislative Portal, together with the Parliament and the Council;
= Implementing the “one-in, one-out” approach to minimize burdens resulting from the increasing EU legislative acts; and
= Improving the analysis and reporting of key impacts of EU legislation and further integrating strategic foresight into the better regulation agenda.
In November 2021, the Commission –as a follow-up of the “2020-better regulation guidelines” has set about 70 very practical legal management tools covering specific aspects of evaluations and stakeholder consultation, legal costs’ estimation, strategic foresight and identification of all impacts on SMEs, employment and sustainability, etc. These “legal tools” would help the national governance and policy-making in preparing new or managing existing legislation to deliver on better regulation for the benefit of all.
Towards better regulation
Several focal point shave to be mentioned relating to new guidelines:
First, a crucial task to strike the right balance in the implementation of the new ‘one-in, one-out’ approach in adopting new laws through “burden reduction”. While keeping the benefits of EU legislation in mind, the idea is to ensure that costs associated to preparation of laws remain reasonable and proportionate. In practice, this means that the EU institutions are starting to offset the burdens resulting from the Commission’s drafts/proposals by reducing already existing norms in a certain policy area. For example, it does not mean that every new piece of legislation will require an existing law to be withdrawn; only the “legal burden” on people and businesses shall be offset to the maximum extent possible. However, the “reduction” would not be at the expense of any environmental and/or socio-economic standards. Presently, the Commission is piloting the “one-in, one-out” approach to be fully implemented in the 2022 Commission Work Program.
Second, the decision-makers must ensure that EU and states’ legislation is “fit for the future”; the pandemic has shown that both has to be more active in better anticipating the existing and expected challenges to develop agile and future-proof regulation. Thus, the 2021 Strategic Foresight Report highlighted climate change, digital hyper connectivity, the pressure on the EU’s democratic systems and demographic change as the megatrends that will “shape the future”.
Third, for the success of “better regulation” agenda the engagement of European member states’ all stakeholders at all levels will be crucial.
Source: Commission press release at: https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_21_6530
Digitalization of law and justice system
As is well-known, there are two main sources of EU law: primary law and secondary law; the former is constituted by treaties laying down the European legal framework, while the former is composed of legal instruments based on these treaties, such as regulations, directives, decisions and agreements. In addition, there are general principles of EU law, the case law developed by the European Court of Justice and international law. A distinguishing feature of EU law is that it can be directly enforceable before the courts of the EU member states (through the so-called “direct effect”) and that some member states’ laws may be held inapplicable when it conflicts with EU law (the so-called “supremacy law” principle).
More on the EU law in: https://e-justice.europa.eu/3/EN/eu_law
Independence, quality and efficiency are the essential elements of an effective justice system in the member states and in the EU decision-making. At present, many data exchanges still take place on paper, which presents a number of inefficiencies, mainly with regard to speed. This situation is detrimental also for citizens and businesses, especially in the context of cross-border proceedings. Digital legal/business technologies have great potential to improve the efficiency of and access to justice.
Since 2008, the European Commission and the Council of the EU have been working closely together towards establishing a number of cross-border digital initiatives in the area of justice. A first result of the political commitment was to make access to national and European e-Justice system easier and more accessible; the decision was adopted during the first Multi-annual e-Justice Action Plan for 2009-2013. The first “instrument” identified a number of priority actions for joint work, which has led to a subsequent e-Justice Strategy and Action Plan –both adopted for the 2014-2018 period.
Reference to: https://ec.europa.eu/info/policies/justice-and-fundamental-rights/digitalisation-justice/general-information_en
European and states’ e-Justice
One of the most tangible results in the direction of digitalisation of law and justice so far is the European e-Justice Portal. It is a one-stop-shop for all justice matters and contains valuable information on a wide variety of topics, as well as a number of online tools. Besides, the EU Justice Scoreboard aims to support the member states in their efforts to effe3ctively achieve justice; in this context, it presents comparative data on various aspects of digitalisation of justice at national level.
See more in: https://e-justice.europa.eu/?action=home&plang=en
Thus, the European e-Justice system aims at improving access to justice in a pan-European context and is developing and integrating information and communication technologies into access to legal information and the workings of judicial systems. Procedures carried out in a digitized manner, as well as electronic communication between those involved in judicial proceedings, are becoming an essential component in the efficient functioning of the judiciary system in the member states.
More on e-justice portal and 2019-2023 Strategy on e-Justice (OJ-2019/C 96/04) in: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019XG0313(01)&rid=7
In this regard, some European e-Justice principles have to be specified: – Digital by default (including making legislative initiatives fit for the digital era), – The “once-only-principle” (in due compliance with data protection rules), – Inclusiveness and accessibility, – Openness and Transparency, – Cross-border by default (where applicable) and interoperability by default (based on standards and open specifications in accordance with principles on standardization), and – Trustworthiness and security.
More on the 2019-2023 Action Plan and Strategy in the e-Justice in: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019XG0313(02)&rid=6.