EU law and justice system: recent scoreboard’s vision

The rule of law is an important part of the Union’s integration process; thus, the new scoreboard is particularly vital in post-pandemic crisis, highlighting importance of digitalisation of justice as one of the means to keep courts open and provide open access to justice. Together with the annual “rule of law report”, the EU justice scoreboard traces developments in the rule of law in all EU states. The 10-year anniversary of the scoreboard is a sign of strong EU’s commitment in improving states’ justice systems and upholding the rule of law in Europe. 

In May 2022, the European Commission published the tenth edition of yearly EU’s Justice Scoreboard, an established annual overview providing comparative data on the efficiency, quality and independence of justice systems in the member states. For the first time, this year’s Scoreboard also includes data on the effects of the COVID-19 pandemic on the efficiency of justice systems, as well as regarding accessibility to justice for persons with disabilities and with a strengthened business dimension. The EU Justice Scoreboard provides a quantitative and visual analysis of national justice systems while the Rule of Law Report includes a country-specific qualitative analysis of the major developments in the member states.
Launched in 2013, the EU Justice Scoreboard is used by the Commission to monitor justice reforms in the states and is a vital tool in the EU’s “rule of law toolbox”.

Three main legal elements under analysis
The Scoreboard focuses on the three main elements depicting the EU’s effective justice system:
Efficiency. This Scoreboard’s chapter presents indicators for the efficiency of proceedings in the broad areas of civil, commercial and administrative cases and in specific areas where administrative authorities and courts apply the EU law. During 2021, procedural law continued to be an area of particular focus in many states, with a significant amount of ongoing or planned legislative activity. Reforms concerning the status of judges and the rules for legal professionals also saw significant activity. A number of member states were in the process of introducing legislation for the use of information and communication technologies (ICT) in their justice systems. Some EU states are already actively using or planning to use artificial intelligence in their justice systems. The overview confirms that the states’ justice reforms require time, sometimes several years: i.e. from their announcement until the adoption of the legislative and regulatory measures and their implementation on the ground.
The 2022 Scoreboard selected five main legal areas: competition, electronic communications, the EU trademark, consumer law and anti-money laundering because of their relevance for the single market and the business environment. For example, the objective of EU electronic communications legislation is to raise competition, to contribute to the development of the single market and to generate investment, innovation and growth. The positive effects for consumers can be achieved through effective enforcement of this legislation which can lead to lower prices for end users, as well as better and quality services.
Thus, an efficient national justice system manages its caseload/backlog of cases and delivers its decisions without undue delay. The main indicators used by the EU Justice Scoreboard to monitor the efficiency of justice systems are therefore the length of proceedings (estimated in terms of days needed to resolve a case), the clearance rate (the ratio of the number of resolved cases to the number of incoming cases) and the number of pending cases (dealt with at the end of the year).
Quality of European justice system. Although, there is no single way of measuring such a quality, the Scoreboard examines some factors that are generally accepted as relevant for improving the justice’s quality. These factors are divided into four main categories: 1. accessibility of justice for citizens and businesses; 2. adequate financial and human resources; 3. available legal assessment tools, and 4. digitalisation.
Some additional indicators are included too, e.g. accessibility (such as legal aid and court fees), training, financial and human resources.
For example, as to accessibility, it is required that throughout the whole “chain of justice” people and businesses can obtain relevant information about the justice system, about initiating a claim concerning administrative and/or financial problems/conflicts, about relevant procedural aspects and, finally about access to the judgment (including online and digital form).
Access to legal aid is a fundamental right enshrined in the Charter of Fundamental Rights of the EU (art 47,3); it allows access to justice for people who would not otherwise be able to bear the costs of litigation; most member states grant legal aid based on the applicant’s income.
Thus, in the EU consumer law, combined effect of the enforcement chain consists of both administrative and judicial review proceedings: in 2020, six member states reported that their consumer protection authorities took on average less than 3 months to issue a decision, while in six other states it took more than 6 months. Where the decisions of the consumer protection authorities were challenged in court, the trends in the length of the judicial review of an administrative decision diverged, with increases in eight, and decreases in four other states; in two states the average length of a judicial review remains at over a thousand days.
For example, the court fees to start judicial proceedings are equal and/or over a thousand euros in Slovakia, Check Republic, Poland, Holland, Germany and Hungary; while less than two hundred in such states as Belgium, Ireland, Spain, Cyprus, Romania and Denmark. In the three Baltic States the court fees range from 6 to 9 hundred euros.
It is also interesting to see a drastic difference in the number of lawyers in the EU-27 per 100.000 citizens. According to EU Commission on efficiency of justice’s methodology, a lawyer is a person qualified and authorised by national law: a) to plead and act on behalf of their clients, b) to engage in the practice of law, and c) to appear before the courts or advise and represent their clients in legal matters (Recommendation of 2000 of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer). Thus, from 300 to 470 lawyers were (in 2020) in such states as Luxembourg, Cyprus, Spain, Italy, Malta and Portugal; while less than hundred were in 3 Baltic States, Austria, Finland and Sweden.
Independence: Judicial independence, which is integral to the task of judicial decision-making, is a requirement stemming from the principle of effective judicial protection (art. 19 TEU) and from the right to an effective remedy before a court or tribunal (art. 47 of the Charter of Fundamental Rights of the EU).
This principle is an indication on perceived judicial independence among the general public and companies and on safeguards relating to judges and the functioning of national prosecution services. Judicial independence guarantees that all the rights that individuals derive from EU law will be protected and that the values common to the member states (set out in art.2 TEU), in particular the value of the rule of law, will be safeguarded. Preserving the EU legal order is fundamental for all citizens and business whose rights and freedoms are protected under EU law.
It is remarkable that from 40 to 70 percent of companies in about 19 member states perceive as “fairly bad and/or very bad” the issue of courts and judges’ independence. Three factors play most important role in such a negative opinion: a) the status and position of judges do not sufficiently guarantee their independence, b) interference or pressure from economic or other specific interests, and c) interference or pressure from government and politicians. In the “category of best 10 percent” are: Denmark, Finland and Germany…
For the first time, the Justice Scoreboard-22 presents the results of a survey on how companies perceive the effectiveness of investment protection by the law and courts as regards unjustified decisions or inaction by the state. The results suggest that administrative conduct, stability and quality of the law-making process (as well as effectiveness of courts) and property protection are key factors of comparable significance for confidence in investment protection. Among the reasons for companies’ concerns about the effectiveness of investment protection, the unpredictable, non-transparent administrative conduct, and difficulty to challenge administrative decisions in court were the most stated reason, closely followed by frequent changes in legislation or concerns about quality of the law making process.
More in: https://ec.europa.eu/info/sites/default/files/eu_justice_scoreboard_2022.pdf

Under the EU’s “justice program” for 2021-2027, the EU budget is making over €300 million available for the further development of a European area of justice. It will also help improve the effectiveness of national justice systems and strengthen the rule of law, democracy and protection of fundamental rights, including by ensuring effective access to justice for citizens and businesses. The EU program, generally, funds activities which cover training for judges and other legal practitioners, mutual learning, judicial cooperation and awareness-raising.

Key conclusions of the 2022 Scoreboard
• Vital improvement in the digitalisation of justice systems: While the 2021 edition took stock of how advanced judicial authorities were implementing digital transformation, the 2022 Scoreboard acknowledged that several EU states adopted new measures to ensure the regular functioning of courts, while also guaranteeing the continued and easy access to justice for all. Yet, findings of the 2022 edition show the need for all states to accelerate modernisation reforms in this area, as room for improvement remains in several states.
• Varying degrees of accessibility to justice for persons with disabilities: For the first time, the EU Justice Scoreboard-2022 includes data on the arrangements in place to support persons with disabilities in accessing justice on an equal basis. Although all EU states have at least some arrangements in place (such as procedural accommodations), only half of the states offer also specific formats, such as Braille or sign language upon request.
• Challenges persist on perception of judicial independence: Since 2016, the perception of the general public had improved in 17 EU states. However, since last year, the public perception of judicial independence has decreased in 14 states; in a few member states the level of perceived independence remains particularly low.
• Guarantees in place to boost investor confidence: Regarding access to justice and its impact on investor confidence, the business environment and functioning of the single market, the 2022 Scoreboard also included data on administrative efficiency, legal safeguards in relation to administrative decisions and confidence in investment protection. Findings show that almost all EU states included measures for companies to receive financial compensation for losses caused by administrative decisions and/or inaction; thus courts may suspend the enforcement of administrative decisions upon request.
Source: https://ec.europa.eu/info/files/eu-justice-scoreboard-2022_en

Commission’s opinion
Vice-President for European values and transparency, Věra Jourová, said: “The EU Justice Scoreboard provides invaluable insights into our justice systems and helps us place the focus where it matters most: ensuring that the rule of law is protected across the European Union. The fact that since last year the public perception of judicial independence has decreased in about half of Member States is concerning and shows that we all need to act to restore trust of the public in the judicial system.”
EU Commissioner for Justice, Didier Reynders, added: “The EU Justice Scoreboard… is a high-appreciated analysis tool for Europe’s justice community. Over the last decade, we have seen the Scoreboard evolving from an overview of basic indicators into a comprehensive collection of high-quality information. It helps us identify both opportunities for improvement and address risks to our justice systems. Objective and high-quality data are a key basis for our efforts to uphold the rule of law and the independence of justice.”
Source and reference to: https://ec.europa.eu/commission/presscorner/detail/en/ip_22_3146

More information in the following Commission’s web-links: – The 2022 EU Justice Scoreboard; – Flash Eurobarometer 503. Perceived independence of the national justice systems in the EU among the general public; – Flash Eurobarometer 504. Perceived independence of the national justice systems in the EU among companies; – Two studies prepared for the European Commission by CEPEJ (the European Commission for the Efficiency of Justice) on the functioning of judicial systems in the EU Member States – 2022”; – 2021 Rule of Law Report; and – EU Justice Scoreboard website.

Law enforcement: infringement cases
The European Commission has taken a laxer approach to enforcement lately, argued legal and political experts: e.g. R. Daniel Kelemen (dept. of political science and law at Rutgers University) and Tommaso Pavone (lawyer and politician from the School of Government and Public Policy at the University of Arizona).
They argued that from the 1970s through the early 2000s, the Commission used its legal tools enthusiastically; however, since 2004, the number of infringements has sharply fallen and plummeted. The experts argue that “the Commission’s relaxation of enforcement was the result of a deliberate political strategy; against a backdrop of mounting Euro-skepticism in the early 2000s, the Commission’s political leadership became worried that vigorous law enforcement was antagonizing member governments and jeopardizing their support for the EU and the Commission’s policy proposals”.
During that time, the Commission’s leaders “chose to curtail enforcement in hopes of rekindling governments’ support”.

Perspectives
The information contained in the EU Justice Scoreboard contributes to the monitoring carried out within the framework of the European Rule of Law Mechanism, and the findings will feed into the Commission’s 2022 Rule of Law Report. The 2022 EU Justice Scoreboard has been further developed to address the need for additional comparative information (such as a new figure on national security checks for judges), identified during the preparation of the 2021 Rule of Law Report. The Scoreboard’s data are also used for the monitoring of the National Recovery and Resilience Plans.
The outcomes of the 2022-Justice Scoreboard have been taken into account in the country-specific assessment carried out within the 2022-European Semester, as well as in the evaluation of the states’ Resilience and Recovery Plans, outlining investment and reforms funded through the Recovery and Resilience Facility (RRF). In 2021, the Annual Sustainable Growth Strategy (which sets out the strategic guidance for the implementation of the Recovery and Resilience Facility, ensuring that the new growth agenda is built on a green, digital and sustainable recovery) reiterates the link between effective justice systems and the business environment in the states. Well-functioning and fully independent justice systems have a positive impact on investment decisions and on the willingness of all actors to launch investment projects.

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