Conference Paper: From drafting common rules to implementing electronic European Civil Procedures: the rise of e-CODEX

In recent years considerable effort has been put in the harmonisation of cross border judicial procedures in the EU with the aim of furthering judicial cooperation in civil and criminal matters. In particular, a number of directives, regulations and other legal instruments have been adopted to facilitate "the coordination between national rules (e.g. in the area of international jurisdiction, recognition and enforcement,2 crossborder service of documents, 3 and the taking of evidence 4 ), to harmonised procedures that provide an automatic recognition and enforcement of the judgment issued for certain types of civil and commercial matters (e.g. the European Order for Payment (EOP), 5 the European Small Claims Procedure (ESCP) 6 and the European Account Preservation Order (EAPO)7)",8 and in criminal matters to support between others, mutual legal assistance between judicial and police authorities, 9 mutual recognition of judicial decisions, extradition (EAW).10 Recently, the focus of the EU discourse has shifted from minimum standards and harmonized rules to the actual implementation, application, and operationalization of such rules. Within this shift, e- Justice has risen to the attention of EU policy makers as a tool (or set of tools), which can be instrumental in the successful implementation of cross-border judicial procedures. Long-term European e-Justice strategies started to be drafted11 to place "information and communication technologies (ICT) at the service of judicial systems [... , to improve] their functioning and contributing to a streamlining of procedures and reduction in costs"12, and with the practical intent to "create synergies of the initiatives at the European and national level".13 As a concrete outcome of this effort, the EU Commission and a group of EU Ministries of Justice begun to develop, within a project called e-CODEX, an infrastructure aimed to support the communication and the exchange of legal information in EU cross-border judicial procedures. The focus of the present paper is on the experience of e-CODEX project in the development of the techno-legal system, which has allowed to pilot 'live' cross-border civil procedures. It is the understanding of the authors that this experience goes far beyond that of developing a technological tool to support judicial procedures. This is because, on the one hand, creating such a tool in the judicial domain requires a reflection on key elements that ensure that procedures are juridically effective in the off-line world, and how such elements need to be transposed in the digital domain. As there is not a perfect fit between the two domains and different judicial domains have different requirements, the developing process needs legal (and political) decision-making. And on the other hand because as a result of the understanding of the procedures and of their problems generated by developing such tools and linked to the need of not only implementing them but having them adopted by the users, actions are taken to influence not only the procedures themselves (e.g. addressing procedural off-line barriers both at implementation level, both influencing the EU legal instruments drafting/revision), but also their drafting approach (e.g. in a more semantically coherent direction). Three topics need to be addressed: 1) the procedural tools created by the EU legislator and implemented by the EU Member States justice systems, 2) the development of e-CODEX solution, and 3) the far reaching effects that have been generated by such development process and by the drive to make the e-CODEX solution sustainable in the long term.