The digitalisation of justice must be based on the experience of practitioners

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The European Commission published on 2 December its communication on the digitalisation of justice systems in the European Union. It recalls in its preamble that “efficient judicial systems are essential for the functioning of the internal market and are a precondition for economic growth. Access to justice must be preserved and evolve at the pace of change, including the digital transformation that affects all aspects of our daily lives.

This need for justice actors to deepen the transition to digital was particularly acute during the Covid-19 crisis. During this crisis, Europe’s notaries mobilised to ensure that their activities, recognised as an essential service of general interest by their supervisory authorities, continued throughout the country. New procedures were tried out and proposed. However, they were based on a solid foundation that had been in place for several years: creation and interconnection of registers, dematerialisation of data transfer, online company formation, deployment of e-signature, electronic authentic instruments, videoconferencing and others.

The European Commission’s Communication is part of this development, setting out several objectives. First, to make digital the default option in cross-border judicial cooperation. This is an objective we fully support. In many countries, communications between notaries and judicial authorities are now organised in a dematerialised manner. This is the case, for example, for consultation and registration in public registers held by notaries or by the State. Thanks to the European Network of Registers of Wills Association, the registers of wills kept by the notaries are even interconnected at European level and enable citizens to find out whether last will and testament provisions concerning them are registered in another country. This is also the case for the online creation of companies, as required by a European directive. European notariats are working with their ministries of justice on innovative solutions for an effective transposition of the directive by August 2021.

A second objective of the European Commission is to promote better access to information. Europe’s notaries have been pioneers in this area, often with the financial support of the European Union. We were the first legal profession to offer a European directory of our members (www.annuaire-des-notaires.eu) to enable citizens to find a notary who speaks their language anywhere in Europe. We were also the first to offer multilingual information sites, for example on EU countries’ inheritance law (www.successions-europe.eu) or on family law (www.couples-europe.eu). This content has been added to the European Commission’s e-Justice portal, which must now be further consolidated.

The Commission also underlines the role of e-CODEX as the main tool for secure cooperation in cross-border civil, commercial and criminal proceedings. Notaries have accompanied the implementation of e-CODEX since its creation in 2010 and we will continue to work on its development.

Finally, the European Commission sets ambitious goals in its European strategy for judicial training 2021-2024 and expands the scope of training to new topics, such as digitalisation or artificial intelligence, and to innovative themes and methods. In this area, we will once again be present. Since 2014 and through our training programmes supported by the European Commission, several thousand notaries have been able to follow training courses in European law or the law of another Member State. Moreover, the notariat has committed itself to moving up a gear and within two years will have an integrated European platform for online training in EU law.

On the question of the digitisation of procedures, the stumbling block is not so much the nature of this digitisation, but its control and access. And the European Commission’s communication does not dwell on these aspects. How to ensure the protection of sensitive data? How can we ensure the independence of the judiciary in the use of computer systems? How can we reconcile artificial intelligence and human control? How can we avoid excluding the elderly or people with disabilities from the process and reinforcing the digital divide already at work within our populations?

In Europe, the law is based on the principle of preventive justice and effective regulation of economic operators. And in 22 Member States, the notary has been a guarantor of legality for several centuries and has always been able to adapt to changes in society. The notary’s office is the profession of authenticity, truth, security and data conservation on which the trust of States and our fellow citizens is based. In an age of forgery, false information, falsified data, money laundering and cybercrime, this truth and security are more than ever essential to society.

Georgios Rouskas
President of the Council of Notariats of the European Union