Legal aid encompasses all public support that is necessary to secure effective access to justice for persons who lack sufficient financial resources (see recital 5 Legal Aid Directive 2003/8). It includes legal representation before a court (both in the form of assistance by a lawyer and in dispensation from payment of court fees, ECJ Case C-279/09 – DEB para 48), but may also extend to legal advice outside court proceedings. Institutions similar to legal aid could already be found in medieval and early modern law. As an example, § 27 of the German Reichskammergerichtsordnung of 1495 provided that the judge should assign an advocate to any poor person who had proved and confirmed under oath a lack of resources. In modern law, legal aid primarily pursues not only social purposes, but also constitutes a central element of the right to a fair trial (ECJ Case C-279/09 – DEB para 41). As a consequence of being a judicial rather than a social right, the need for legal aid must be assessed ‘on the basis of the right of the actual person whose rights and freedoms … have been violated, rather than on the basis of the public interest of society, even if that interest may be one of the criteria for assessing the need for the aid’ (ECJ Case C-279/09 – DEB para 42).
2. Legal aid as a fundamental right
The right to legal aid forms part of the more general right of access to a court guaranteed by Art 6(1) ECHR and Art 47 of the Charter of Fundamental Rights of the European Union (fair trial; human rights and fundamental rights (ChFR and ECHR)). A central part of the concept of a fair trial is the understanding that no litigant shall be denied the opportunity to present his or her case effectively before the court and that he or she shall be able to enjoy equality of arms with the opposing side (ECtHR No 68416/01 – Steel and Morris para 59; ECJ Case C-279/09 – DEB para 45). This includes financial accessibility to the court system. While Art 47(3) Charter of Fundamental Rights of the European Union explicitly provides that ‘legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice’, Art 6(1) ECHR leaves to the state a free choice of the means to be used in guaranteeing litigants the right to a fair hearing. The institution of a legal aid scheme constitutes one possible solution among others, such as simplifying the applicable procedure (ECtHR No 6289/73 – Airey para 26; ECtHR No 46311/99 – McVicar para 50).
However, Art 6(1) ECHR may be engaged under two interrelated aspects (ECtHR No 77765/01 – Laskowska para 50). First, the failure to provide the assistance of a lawyer may breach Art 6(1) ECHR where such assistance is indispensable for effective access to court, either because legal representation is rendered compulsory or by reason of the complexity of the procedure or the type of case which makes it impossible for the individual to present his or her case properly and satisfactorily without the assistance of a lawyer (ECtHR No 6289/73 – Airey paras 26–8; ECtHR No 77765/01 – Laskowska para 51). The latter will depend upon the individual circumstances of the case such as, inter alia, the importance of what is at stake for the individual in the proceedings, the complexity of the relevant law and procedure, the need to address complicated points of law or to establish facts involving expert evidence and the examination of witnesses, the individual’s intellectual capacity to express and represent himself or herself effectively, and the fact that the subject matter of the dispute entails an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court (ECtHR No 6289/73 – Airey para 26; ECtHR No 46311/99 – McVicar para 48; ECtHR No 68416/01 – Steel and Morris para 61; ECtHR No 77765/01 – Laskowska para 51; ECJ Case C-279/09 – DEB para 46). Secondly, even if a party is capable of conducting his or her case without the assistance of a lawyer, Art 6(1) may be engaged under the key principle of overall fairness of the proceedings (ECtHR No 46311/99 – McVicar paras 50–1) because any party in civil proceedings must be able to participate effectively by being able to put forward the matters in support of his or her claims, in particular if the matter at stake is of considerable importance (ECtHR No 77765/01 – Laskowska para 54). Finally, the right to a fair trial may also be impaired by other financial barriers such as excessively high court fees (ECtHR No 28249/95 – Kreuz paras 60, 66) or security for costs (ECtHR No 18139/91 – Tolstoy Miloslavsky paras 61 ff, 67).
The right to legal aid as part of the right of access to a court is not absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate (ECJ Case C-279/09 – DEB para 60). In particular, certain conditions may be imposed on the grant of legal aid based on the financial situation of the litigant or his or her prospects of success in the proceedings (ECtHR No 68416/01 – Steel and Morris para 62; ECJ Case C-279/09 – DEB paras 46, 61). The fulfilment of such conditions is to be determined by the court and not an administrative legal aid board (ECtHR No 25357/94 – Aerts para 60). Furthermore, Art 6(1) ECHR does not seek, through the use of public funds, to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary (ECtHR No 68416/01 – Steel and Morris para 62). Being a judicial rather than a social right, legal persons are not per se excluded from legal aid. However, the national court may refuse legal aid on the basis of an assessment which takes into account, ‘inter alia, the form of the legal person in question and whether it is profit-making or non-profit-making; the financial capacity of the partners or shareholders; and the ability of those partners or shareholders to obtain the sums necessary to institute legal proceedings’ (ECJ Case C-279/09 – DEB paras 59, 62). A denial of legal aid in a procedure with mandatory legal representation which is based on erroneous premises or a lack of examination of the merits violates Art 6(1) ECHR (ECtHR No 77765/01 – Laskowska para 60).
Not only European, but also the national law of the Member States recognizes a right to legal aid. Specific guarantees may be found in national constitutions (Germany: Arts 3(1), 20(3) Grundgesetz; Spain: Art 119 Constitución Española; Switzerland: Art 29(3) Bundesverfassung) or legislation (Austria: §§ 63 ff Zivilprozessordnung; England: Access to Justice Act of 1999; France: Loi No. 91-647 du 10 juillet 1991 relative à l’aide juridique; Germany: §§ 114 ff Zivilprozessordnung; Switzerland: Arts 117 ff Zivilprozessordnung; Spain: Ley 1/1996, de 10 de enero 1996, de Asistencia Jurídica Gratuita). On the level of EU legislation, Directive 2003/8 of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes is key. The EU Directive takes precedence (Art 20 Dir 2003/8) over other international instruments in the field such as the Hague Convention of 1 March 1954 on civil procedure, the European Agreement on the Transmission of Application for Legal Aid of 27 January 1977 or the Hague Convention of 25 October 1980 on International Access to Justice and shall therefore be the focus of this article. On the level of soft law, the Council of Europe has adopted several recommendations and resolutions on legal aid (Resolution 76(5) on legal aid in civil, commercial and administrative matters; Resolution 78(8) on legal aid and advice; Recommendation 93(1) on effective access to the law and justice for the very poor; Recommendation 2005(12) containing an application form for legal aid abroad for use under the European Agreement on the transmission of applications for legal aid and its additional protocol).
3. Legal aid in practice
Although in principle all EU Member States recognize a right to legal aid, the conditions, the extent and the expenditure of legal aid vary. The highest expenditure on legal aid appears to be found in England and Wales, which spent approximately £803 million per annum on legal aid in civil cases (excluding criminal and asylum matters; Justice Committee – Third Report, Government’s proposed reform of legal aid (2011) para 14). Lower but still significant numbers can be found in Germany where attorney’s fees paid from legal aid (excluding criminal cases) amounted to approximately €500 million in 2008, an increase of 20 per cent since 2004. Additional costs result from payments to experts and the waiver of court fees in proceedings funded by legal aid. In both countries, the most important private law field for legal aid are family law disputes, which account for approximately 75 per cent (Germany) or over two-thirds (England) of all legal aid proceedings. In 25 per cent of all German family law cases, both parties were supported by legal aid, in 54 per cent of all family law proceedings, at least one party received legal aid (Statistisches Bundesamt, Justiz auf einen Blick (2011) 43).
Against this background, it is not surprising that the limitation of legal aid is a recurring theme on the political agenda. Leaving laudable efforts of legal pro bono work to the side, an alternative to legal aid provided through state-funded private attorneys is a system of legal advice provided through community legal advice centres which, however, at least if fully funded by the state, might in effect not lead to an overall reduction of costs. It might also raise concerns as to the independence of these centres from other state organs, at least if they are publicly funded. A further alternative that could reduce the burden on the legal aid system (in particular from cases coming primarily from families with an average income) is a model of widespread private legal expense insurance (as is in place in Germany) or a combination of conditional fee arrangements and after-the-event insurance. However, the private insurance solution appears to only be workable if the risk is amenable to private insurance calculation. This seems to be true for tort law, in particular traffic accident law (including criminal consequences), and general contract law such as landlord/tenant disputes or employment law, but it appears to be problematic in particular in family law, which amounts for the largest number of legal aid cases. In addition, private insurance will only save public expenses if private parties are willing and able to take out insurance; it will thus be ineffective at reducing the burden on the legal aid system from supporting the lower income groups. A further issue raised by the financial constraints of the legal aid system is the fact that representation funded by legal aid guarantees only representation by a certain segment of the bar, namely those willing to work for reduced fees because other income is not readily available or because they feel morally and ethically obliged to take on such cases. In any event, it should not be forgotten that no legal aid system can release the judiciary from its obligation to ensure financially disadvantaged parties effective access to justice.
4. EU law
On the level of EU legislation, Directive 2003/8 of 27 January 2003 to improve access to justice in cross-border disputes establishes minimum common rules for cross-border disputes; as pointed out above, it takes precedence over other international instruments in the field and is the focus of the following discussion. The purpose of Dir 2003/8 is to improve access to justice in cross-border disputes by establishing minimum (Art 19 Dir 2003/8) common rules relating to legal aid in such disputes (Art 1(1), recitals 5 and 8 Dir 2003/8). The scope of the Directive is thus—contrary to initial proposals by the European Commission as a result of concerns about EU competence (legislative competence of the EU)—limited to cross-border disputes (Art 1(2) Dir 2003/8). A cross-border dispute is defined by Art 2(1) Dir 2003/8 as ‘one where the party applying for legal aid in the context of this directive is domiciled [Art 59 Brussels I Reg] or habitually resident in a Member State other than the Member State where the court is sitting or where the decision is to be enforced’.
In substance, the Directive (Art 4 Dir 2003/8) reaffirms the principle of non-discrimination on the basis of nationality in granting legal aid (see Art 18 TFEU/12, 18 EC) and extends it beyond Union citizens to third-country nationals residing lawfully in a Member State. Further, the Directive establishes certain minimum standards for legal aid in cross-border disputes. Article 3 Dir 2003/8 gives natural persons involved in a cross-border dispute in civil and commercial matters (Art 1(2) Dir 2003/8) a right to ‘receive appropriate legal aid in order to ensure their effective access to justice in accordance with the conditions laid down in the directive’. Appropriate legal aid includes both pre-litigation advice with a view to reaching a settlement prior to bringing legal proceedings (Art 3(2)(a) Dir 2003/8) as well as legal assistance and representation in court, and exemption from, or assistance with, the cost of proceedings, including the costs of interpretation, translation and travel (Art 7 Dir 2003/8) and the fees to persons mandated by the court to perform acts during the proceedings (Art 3(2)(b) Dir 2003/8).
Legal aid may also extend to extrajudicial procedures if the law or the court requires the parties to use them (Art 10 Dir 2003/8) or the enforcement of authentic instruments in another EU Member State (Art 11 Dir 2003/8). A specific form of legal aid to be covered by the Member State of domicile or habitual residence is guaranteed by Art 8 Dir 2003/8, namely granting legal aid for preparing an application for legal aid in another Member State and translating the application and necessary documents. The costs of the opposing party are only covered if legal aid would have covered such costs had the recipient been domiciled or habitually resident in the Member State in which the court is sitting (Art 3(2), recital 12 Dir 2003/8). Following the jurisprudence of the ECtHR, Member States need not provide legal assistance in proceedings especially designed to enable litigants to make their case in person, except when the courts or any other competent authority decide otherwise in order to ensure equality of parties or in view of the complexity of the case (Art 3(3) Dir 2003/8). Following the model of French law, the Directive provides for a ‘continuity of legal aid’ which continues to be available for appeal and recognition and enforcement procedures (Art 9(1)–(3) Dir 2003/8, Art 50 Brussels I Reg). However, Member States may make provision for the re-examination of the application for legal aid at any stage in the proceedings (Art 9(4) Dir 2003/8).
The grant of legal aid is subject to certain conditions which relate to the financial resources of the applicant and to the substance of the dispute. In financial terms, Art 5(1) limits legal aid to natural persons who are, as a result of their economic situation, partly or totally unable to meet the costs of proceedings. The economic situation of a person is assessed on the basis of objective factors such as income, capital or family situation, including an assessment of the resources of persons who are financially dependent on the applicant (Art 5(2) Dir 2003/8). On the basis of these criteria, Member States may fix thresholds above which legal aid applicants are deemed partly or totally able to bear the costs of proceedings (Art 5(3) Dir 2003/8), but applicants may prove that they are unable to pay the cost of them as a result of differences in the cost of living between the Member States of domicile or habitual residence and of the forum (Art 5(4) Dir 2003/8). Legal aid need not be granted insofar as applicants enjoy, in the instant case, effective access to other mechanisms that cover the cost of proceedings (such as legal insurance or representation by trade unions in employment disputes). Member States may also ask the recipient of legal aid to contribute, within the limits of his or her financial resources, to the costs of proceedings (Art 3(4) Dir 2003/8). They can provide that the competent authority may order the recipients of legal aid to refund it, in whole or in part, if their financial situation has substantially improved or if the decision to grant legal aid had been taken on the basis of inaccurate information given by the recipient (Art 3(5) Dir 2003/8).
In addition to financial thresholds, legal aid may require a certain minimum chance of success on the merits. Thus, it may be rejected for actions which appear to be manifestly unfounded (Art 6(1) Dir 2003/8) or—if pre-litigation advice is offered—the benefit of further legal aid may be refused or cancelled on grounds related to the merits of the case insofar as access to justice is guaranteed (Art 6(2) Dir 2003/8). In deciding on the merits of an application, the importance of the individual case to the applicant and—when the applicant is claiming damage to his or her reputation but has suffered no material or financial loss or when the application concerns a claim arising directly out of the applicant’s trade or self-employed profession (see Access to Justice Act of 1999, Sch 2, no 1(f))—the nature of the case may be taken into account (Art 6(3), recital 17 Dir 2003/8).
With the exception of legal aid for preparing an application in another Member State (Art 8 Dir 2003/8), the decision to grant or refuse legal aid is taken by the competent authority of the Member State in which the court is sitting (Art 12 Dir 2003/8). The application may be submitted either to the competent authority of the Member State in which the applicant is domiciled or habitually resident (transmitting authority) or to the competent authority of the Member State in which the court is sitting or where the decision is to be enforced (receiving authority), Art 13 Dir 2003/8. The application must be translated into an official language of the receiving authority or another language accepted by the receiving state (Art 13(2) Dir 2003/8, for legal aid and support in the application and translation process Arts 8(b), 13(4) Dir 2003/8). If the application is submitted to the transmitting authority, it is under an obligation to transmit the application to the competent receiving authority in the other Member State within 15 days of the receipt of the application duly completed and translated, unless it finds the application to be manifestly unfounded or outside the scope of the Directive (Art 13(4)3 Dir 2003/8). If the application is rejected, reasons for rejection must be given and the rejection must be subject to legal review (Art 15 Dir 2003/8). Standard forms for legal aid applications and the transmission of such applications under Dir 2003/8 can be found in Commission decisions 2004/844 and 2005/630.
Matthias Humborg, Das Armenrecht von der Zeit der Kammergerichtsordnungen bis heute (2000); Peter Gottwald, ‘Prozesskostenhilfe für grenzüberschreitende Verfahren in Europa’ in Festschrift Walter H Rechberger (2005) 173; John Flood and Avis Whyte, ‘What’s Wrong with Legal Aid? Lessons From Outside the UK’ (2006) 25 Civil Justice Quarterly 80; Roger Bowles and Amanda Perry, International Comparison of Publicly Funded Legal Services and Justice Systems, Ministry of Justice Research Series 14/09 (2009), <www.justice.gov.uk/publications/docs/comparison-public-fund-legal-services-justice-systems.pdf>; Council of Europe—European Commission for the Efficiency of Justice (CEPEJ), European Judicial Systems: Efficiency and quality of justice (2010), <https://wcd.coe.int/wcd/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1694098&SecMode=1&DocId=1653000&Usage=2>; Wolfgang Hau, ‘Europäische Prozesskostenhilferichtlinie’ in Martin Gebauer and Thomas Wiedmann (eds), Zivilrecht unter europäischem Einfluss (2nd edn, 2010) 1971 ff; Justice Committee—Third Report, Government’s proposed reform of legal aid (2011), <www.publications.parliament.uk/pa/cm201011/cmselect/cmjust/681/68102.htm>.