Legal Aid for EU Residents

On 18th January this year the EU Commission published a draft Directive with the aim of improving access to justice in cross-border disputes by establishing minimum common rules relating to legal aid and other financial aspects of civil proceedings. This follows a Green Paper on legal aid in civil matters issued by the Commission in March 2000. The draft Directive attempts to promote, in the context of legal proceedings, the progress toward general market harmonisation across the EU. A revised draft of the Directive is expected to be published shortly.

The United Kingdom and Ireland will not be subject to the Directive unless they opt in, which neither has yet done. This "opt in" arrangement arises under the Treaty on European Union, known as the Maastricht Treaty of 1992. Denmark has opted out of the regime.

The current draft provides that after the Directive has come into force, Member States will have until 1 January 2004 to make the necessary domestic arrangements to comply with the Directive.

Key Provisions

The draft introduces a right to legal aid in all disputes in civil and commercial matters in the EU, including employment and consumer law (but not administrative law). Legal aid is defined to mean "all resources made available to persons to ensure their effective access to justice where their financial resources are inadequate to cover the costs of litigation, and includes at least the services of a lawyer and the cost of proceedings".

The provisions apply to natural persons (whether claimants or defendants) and to legal persons so long as they are non profit-making, for example consumer organisations. The right to legal aid is not restricted to EU citizens - it would extend also to "third-country nationals residing lawfully in a member state".

Eligibility

Each Member State may define the financial criteria for granting legal aid. Although there is also a merits test, the proposed approach is far less restrictive than are, for example, the requirements in England and Wales. The draft Directive states that applications may only be rejected "for actions which appear to be manifestly unfounded".

The draft provides that where alternatives to private funding exist, such as 'no-win no-fee' arrangements, legal aid applicants will be presumed to be able to bear the cost of proceedings, so long as court costs are also payable by someone other than the applicant. Member States are required to provide that the winning party shall be...