Ministers' Deputies
CM Documents

CM(2000)56 28 April 2000
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710 Meeting, 18 May 2000
10. Legal questions

10.1 European Committee on Legal Co-operation (CDCJ)

Abridged Report of the 73^rd meeting (Strasbourg, 4 - 7 April 2000)

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1. The European Committee on legal co-operation (CDCJ) met in Strasbourg from 4 to 7 April 2000 ^{footnote 1} . The list of participants and the agenda appear in Appendices I and II respectively.

2. The CDCJ invited the Committee of Ministers to adopt the text of the draft Recommendation on the freedom of the exercise of the profession of lawyer and to authorise the publication of its explanatory memorandum (see item 7 of the agenda and the Addendum to this report).

3. The CDCJ forwarded for the attention of the Committee of Ministers its opinion on:

a. Parliamentary Assembly Recommendation 1425 (1999) on biotechnology and intellectual property (see item 10.a of the agenda and Appendix III);

b. CLRAE Recommendation 54 (1999) on local and regional information society (see item 10.b of the agenda and Appendix IV);

c. Parliamentary Assembly Recommendation 1431 (1999) on future action to be taken by the Council of Europe in the field of environment protection (see item 10.c of the agenda and Appendix V).

4. The CDCJ invited the Committee of Ministers to note:

a. that it has forwarded to the 23^rd Conference of European Ministers of Justice the Report on cost-effective measures taken by States to increase the efficiency of justice (see item 9 of the agenda);

b. that, following the request of the Multidisciplinary Group on corruption (GMC), it has adopted an opinion on the draft Recommendation on codes of conduct for public officials and forwarded it for the attention of the GMC (see item 10.d of the agenda);

c. that the CDCJ has invited delegations interested in receiving used IT equipment and delegations wishing to give such equipment to inform the Secretariat (see item 11 of the agenda);

d. its proposals relating to the follow-up to the Monitoring on the functioning of the judicial system (see item 12.a of the agenda);

e. the discussions of the CDCJ concerning its future activities, the priority nature of its work and the need to ensure the availability of sufficient resources to enable it to carry out as rapidly as possible its programme of activities (see items 14 and 21 of the agenda).

5. The CDCJ considered:

a. the work carried out under its authority (see items 5.a and 6 b, c, d and e of the agenda and Appendix III);

b. the preparation of the 23^rd Conference of the European Ministers of Justice (London, 8 and 9 June 2000) on delivering justice in 21^st century (see item 6.a.i of the agenda);

c. the preparation of a draft Convention on information and legal co-operation concerning "Information Society Services" (see item 8 of the agenda);

d. the preparation of the draft framework global action plan for judges in Europe (see item 12.c of the agenda);

e. the question of public access to documents (see item 13 of the agenda);

f. the Best Practice Survey of the Convention on the establishment of a scheme of registration of wills [ETS No 77] (see item 15 of the agenda).

6. The CDCJ took note of:

a. the invitation by the Minister of Justice of the Russian Federation to hold the 24^th Conference of European Ministers of Justice in Moscow in 2001 (see item 6.a.ii of the agenda);

b. information concerning other legal work carried out within the Council of Europe, including legal co-operation with the countries of Central and Eastern Europe (for the fields for which the CDCJ is responsible) and the work of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly (see item 17.a of the agenda);

c. information concerning the work being carried out by the European Union on matters of interest to the CDCJ (see item 17.b of the agenda).

7. The CDCJ welcomed the fact that the European Convention on the exercise of children’s rights [ETS No 160] would come into force on 1 July 2000 (see item 5.c.iv of the agenda).

8. The CDCJ decided to hold its next meeting from 4 to 8 December 2000 (see items 21 and 22 of the agenda).

9. Finally the CDCJ invited the Committee of Ministers to take note of this report as a whole.

ALBANIE/ALBANIA : Mrs Arta Mandro, School of Magistrate, Tirana

ANDORRE/ANDORRA : Mrs Rosa Castellon Sanchez, Edifici Administraiu, Andorra la Vella

AUTRICHE/AUSTRIA : Mr Werner Schütz, Ministère Fédéral de la Justice, Wien

BELGIQUE/BELGIUM : Mme Roseline Demoustier, Ministère de la Justice, M. Jean Gautier, Ministère des Affaires Etrangères, Me Paul-François Ghorain, Fédération Royale des Notaires, Bruxelles

BULGARIE/BULGARIA : Mr Petar Rachkov, Ministry of Justice and European Legal Integration, Sofia

CROATIE/CROATIA : Mrs Lidija Lukina-Karajkovic, Ministry of Justice, Zagreb

CHYPRE/CYPRUS : Mrs Clélia Theodoulou, Law Office of the Republic, Nicosia

REPUBLIQUE TCHEQUE/CZECH REPUBLIC : Mr Jindrich Babicky, Ministry of Justice, Prague

DANEMARK/DENMARK : Mrs Mads Bundgaard Larsen, Ministry of Justice, Copenhagen

ESTONIE/ESTONIA : Mr Priidu Parna, Ministry of Justice, Tallinn

FINLANDE/FINLAND : Mrs Tiina Astola, Ministry of Justice, Helsinki

FRANCE : M. Bruno Sturlese, Ministère de la Justice, Mme Claudine Jacob, Ministère des Affaires Etrangères, Paris

GEORGIE/GEORGIA: Mrs Nino Kadagidze, Ministry of Justice, Tbilissi

excusé/apologised

ALLEMAGNE/GERMANY : Mr Eberhard Desch, Bundesministerium der Justiz, Berlin

GRECE/GREECE : Mme Xeni Skorini-Paparrigopoulou, Ministère de la Justice, ATHENES

HONGRIE/HUNGARY : Ms Kinga Szurday, Ministry of Justice, Budapest

ISLANDE/ICELAND : Mr Björn Fridfinnsson, Ministry of Justice, Reykjavik

IRLANDE/IRELAND : excusé/apologised

ITALIE/ITALY : M. Giuseppe Magno, Ministère de la Justice, Rome

LETTONIE/LATVIA : Mrs Inese Krastina, Ministry of Justice, Riga

LIECHTENSTEIN : excusé/apologised

LITUANIE/LITHUANIA : Mr Darius Zilys, Ministry of Justice, Vilnius

LUXEMBOURG : M. Marc Mathekowitsch, Ministère de la Justice, Luxembourg

excusé/apologised

MALTE/MALTA : Mr Vincent Anthony De Gaetano, Courts of Justice, Valletta

MOLDOVA : Mrs Galina Chirinciuc, Ministry of Justice, Chisinau

PAYS-BAS/NETHERLANDS : Mr Jacques Jansen, Ministry of Justice, The Hague

NORVEGE/NORWAY : Mr Inge Lorange Backer, Ministry of Justice, Oslo

POLOGNE/POLAND : Mr Andrzej Ryng, Ministry of Justice, Warsaw

PORTUGAL : M. Luis Maria Vaz das Neves, Ministère de la Justice, Lisbonne

ROUMANIE/ROMANIA : Mme Cristina Luzescu, Ministère de la Justice, Bucarest

excusé/apologised

FEDERATION DE RUSSIE/RUSSIAN FEDERATION : Mr Dmitry Bykov, Ministry of Foreign Affairs, Moscow

SAINT-MARIN/SAN MARINO : excusé/apologised

SLOVAQUIE/SLOVAKIA : Mr Milos Hatapka, Ministry of Justice, Bratislava

SLOVENIE/SLOVENIA : Mrs Tatjana Krivec Tavcar, Ministry of Justice, Ljubljana

ESPAGNE/SPAIN : Mr Alfredo Pascual Martinez, Ministry of Justice, Madrid

SUEDE/SWEDEN : Mr Olle Abrahamsson, Ministry of Justice, Stockholm

SUISSE/SWITZERLAND : M. Philippe Boillat, Mme Françoise König, Office Fédéral de la Justice, Berne

"L'EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE"/"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" : M. Svetomir Skaric, Faculté de Droit, Skopje

TURQUIE/TURKEY : Mr Seref Ünal, Ministry of Justice, Ankara

UKRAINE : Mrs Alla Sanchenko, Ministry of Justice, Kyiv

ROYAUME-UNI/UNITED KINGDOM : Mr Edwin Philip Kilby, Lord Chancellor's Department, London

ASSEMBLEE PARLEMENTAIRE/PARLIAMENTARY ASSEMBLY

COMMISSION DES QUESTIONS JURIDIQUES ET DES DROITS DE L'HOMME DE L'ASSEMBLEE PARLEMENTAIRE/COMMITTEE ON LEGAL AFFAIRS AND HUMAN RIGHTS OF THE PARLIAMENTARY ASSEMBLY : Lord Kirkhill, House of Lords, London

COMMUNAUTE EUROPEENNE/EUROPEAN COMMUNITY :

Commission : Mr Salvatore d’Acunto, Bruxelles (Belgique/Belgium)

OBSERVATEURS AUPRES DU CONSEIL DE L’EUROPE/OBSERVERS WITH THE COUNCIL OF EUROPE:

SAINT-SIEGE/HOLY SEE : Mme Odile Ganghofer, Strasbourg

CANADA : excusé/apologised

JAPON/JAPAN : Mr Yoshihide Asakura, M. Pierre Dreyfus, Consulat Général du Japon, Strasbourg

ETATS-UNIS D'AMERIQUE/UNITED STATES OF AMERICA : excusé/apologised

MEXIQUE/MEXICO : Mr Rafael Laveaga, Mexican Attorney General for Europe, Madrid

OBSERVATEURS AUPRES DU COMITE/OBSERVERS WITH THE COMMITTEE:

ARMENIE/ARMENIA : Mr Hayk Khemchyan, Ministry of Justice, Yerevan

AZERBAIDJAN/AZERBAIJAN : excusé/apologised

BELARUS : Mr Sergei Kolos, Ministry of Foreign Affairs, Minsk

BOSNIE ET HERZOGOVINE/BOSNIA AND HERZEGOVINA : Mr Sidik Spahic, Ministry of Foreign Affairs, Sarajevo

ORGANISATIONS INTERNATIONALES INTERGOUVERNEMENTALES/

INTERNATIONAL INTERGOVERNMENTAL ORGANISATIONS:

COMITE CONSULTATIF JURIDIQUE ASIO-AFRICAIN/ASIAN AFRICAN LEGAL CONSULTATIVE COMMITTEE : excusé/apologised

COMMISSION INTERNATIONALE DE L'ETAT CIVIL/INTERNATIONAL COMMISSION ON CIVIL STATUS : M. Paul Lagarde, Mme Chantal Nast, Strasbourg

COMMISSION DU DROIT INTERNATIONAL DES NATIONS-UNIES/INTERNATIONAL LAW COMMISSION OF THE UNITED NATIONS : excusé/apologised

CONFERENCE DE LA HAYE DE DROIT INTERNATIONAL PRIVE/THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW : M. Hans Lan Loon, The Hague (Pays-Bas/Netherlands) excusé/apologised

OCDE/OECD : excusé/apologised

BUREAU DES INSTITUTIONS DEMOCRATIQUES ET DES DROITS DE L'HOMME/ OFFICE FOR DEMOCRATIC INSTITUTIONS AND HUMAN RIGHTS (BIDDH/ODIHR): excusé/apologised

UNIDROIT : excusé/apologised

COMMISSION DES NATIONS UNIES POUR LE DROIT COMMERCIAL INTERNATIONAL/UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (CNUDCI/UNCITRAL) : excusé/apologised

CONSEIL DES BARREAUX DE LA COMMUNAUTE EUROPEENNE/COUNCIL OF THE BARS AND LAW SOCIETIES OF THE EUROPEAN COMMUNITY : Mme Valérie Bauer, Bruxelles (Belgique/Belgium)

SECRETARIAT

M. Guy De Vel, Directeur Général des Affaires Juridiques; Mme Margaret Killerby, Chef du Service de droit privé, Secrétaire du CDCJ; M. Alexey Kozhemyakov, Chef du Service de droit public; M. Roberto Lamponi, Chef du Service du Conseil Juridique et du Bureau des Traités; Mlle Dörte Fickje, Chef de la Division de l’informatique juridique ; M. Rafaël Benitez, Administrateur; M. Gianluca Esposito, Administrateur, Co-Secrétaire du CDCJ; M. Patrick Titiun, Administrateur ; Mme Danuta Wisniewska-Cazals, Administratrice, Mlle Nathalie Wawrzyniak, Administratrice, M. Jean Claus, Assistant Administratif Principal, Mme Brigitte Rall, Secrétaire.

1. Opening of the meeting

2. Adoption of the agenda

3. Statement by the Secretariat

4. Decisions of the Committee of Ministers concerning the CDCJ

5. State of work of committees of the CDCJ and work of Convention Committees of direct interest to the CDCJ

6. Conferences and Colloquies in the legal field

7. Adoption of the draft Recommendation and its explanatory memorandum on the freedom of the exercise of the profession of lawyer

8. Preparation of a draft Convention on information and legal co-operation concerning "Information Society Services"

9. Adoption of the draft Guide on cost-effective measures to increase the efficiency of justice

10. Opinions

11. The redistribution of IT equipment

12. Additional questions proposed by the Committee of Ministers to the CDCJ

13. Public access to documents

14. Intergovernmental programme of activities

15. Operation of Conventions, Agreements and Recommendations falling within the competence of the CDCJ

16. The Internet website of the CDCJ

17. Legal work carried out outside the CDCJ

18. Tasks to be given to the Bureau of the CDCJ

19. Appointments

20. Adoption of the report of the CDCJ

21. Agenda of the 74^th meeting of the CDCJ

22. Calendar of future meetings

23. Any other business

1. Following the adoption by the Parliamentary Assembly of Recommendation 1425 (1999) on biotechnology and intellectual property, the European Committee on legal co-operation (CDCJ) and the Steering Committee on Bioethics (CDBI) had been invited by the Committee of Ministers to give an opinion on the text.

2. The CDCJ was pleased to note that in 1993, in its Recommendation 1213 on developments in biotechnology and the consequences for agriculture, the Parliamentary Assembly, while underlining the multiple possibilities that biotechnology offers, also warned against certain negative effects (such as the long term effect on agriculture as a whole and the effect on rural regions) which could result from its application and invited States "to adopt a cautious policy with regard to the granting of patents for biotechnological inventions and application". The Parliamentary Assembly’s concern to see this field be regulated was reaffirmed in its Recommendation 1240 (1994) on the protection and patentability of material of human origin. In this Recommendation, the Parliamentary Assembly was concerned about the insufficiency of the provisions concerning the protection of biotechnological innovations and recommended, instead of drafting a specific regulation in this field, the adoption of the Bioethics Convention.

3. The Directive of the European Union on the legal protection of biotechnological inventions (98/44/EC) has the merit of giving more detailed rules on the patentability of living matter and of taking into account the problems raised by the developments in this field. Thus it constitutes a new legal basis for intellectual property. Nevertheless, the application of this Directive is not yet effective.

4. Moreover, the CDCJ noted, during the International Conference on Ethical Issues Arising from the Application of Biotechnology (Oviedo, 16 – 19 June 1999), that patentability was an issue that was specifically dealt with from an ethical point of view and was continually discussed throughout the Conference.

5. The CDBI, which was entrusted with the organisation of this Conference and which was also asked by the Committee of Ministers to give an opinion on the Recommendation 1425, proposed to create under its authority a multidisciplinary Working Party which would be in charge of examining ethical, social and legal issues arising from the application of biotechnology, including its intellectual property aspects.

6. The CDCJ noted that Recommendation 1425 (1999) raised important problems concerning biotechnology and intellectual property. The CDCJ fully supported the carrying out of work in this field in particular in relation to legal and ethical issues. The CDCJ welcomed the setting up of the Working Party on biotechnology of the CDBI and would appoint an expert to represent the CDCJ at the Working Party. However in view of the immensity and complexity of issues the CDCJ doubted whether it would be possible for this Working Party to finalise its work by the end of 2000 and considered that it would be important to identify priorities. In the medium term this work might be usefully informed of the results of the application of EU Directive 98/44/EC which had not yet entered into force. The CDCJ noted that the Committee for the Activities of the Council of Europe in the field of biological and landscape diversity (CO-DBP) might also have a role to play.

1. Following the adoption of Recommendation 54 (1999) on local and regional information society by the Congress of Local and Regional Authorities of Europe (CLRAE) the CDCJ noted that the CDCJ as well as the Steering Committee on the Mass Media (CDMM) and the Council for Cultural Co-operation (CDCC) have been invited by the Committee of Ministers to examine the necessity and the feasibility of elaborating "a European Information Technology Charter in order to establish a set of principles on issues such as the protection of minors, norms on international commerce, taxation, consumer protection, copyright, data protection, cryptography and many other issues" as mentioned in paragraph 18 of the Recommendation.

2. As indicated in paragraph 18 of the Recommendation, the CDCJ is convinced that the transition towards an information society needs to be counterbalanced by the drafting of a set of protective rules for information users and diffusers.

3. The CDCJ noted that under its authority several committees are entrusted with the examination of the consequences of the development of new technologies. Thus:

- the Committee of Experts on Information Technology and Law (CJ-IT) is currently examining issues concerning the authenticity of data and of electronic/digital signatures in the legal sector in order to elaborate guidelines. This Committee is also in charge of organising the 14^th Colloquy on information technology and law in Europe (Cambridge, May 2000) which will be on the following topic: "Information technology and law: linking systems and their users – modern communication technologies in the legal fields".

- the Project Group on Data Protection (CJ-PD) is currently in charge of examining the issues concerning the impact of new technologies on data protection.

4. The CDCJ also noted that the European Commission proposed to the CDCJ a new common initiative on "Information Society services" which aims to create, among members States and candidates to the Council of Europe, a network in which all draft laws concerning the Internet and its services, that derive from one state, should be circulated for prior examination and observation purposes. This question will be examined by the CDCJ during 2000.

5. Furthermore, the CDCJ noted that, taking into account Recommendation (89) 9 on computer-related crime and Recommendation (95) 13 on problems of criminal procedural law, in connection with information technology, the European Committee on Crime Problems (CDPC) is elaborating a draft Convention on cyber-crime.

6. The CDCJ noted that new information technologies constitute a field in constant evolution in which all aspects due to their diversity and capacity to evolve would be different to cover in a single European Charter.

7. The CDCJ pointed out that paragraph 18 of the CLRAE Recommendation deals with many different issues, some of which fall within the Council of Europe expertise (eg information technology and law, data protection, certain crimes), others (eg electronic commerce) are being dealt with by other international institutions, such as the Hague Conference on Private International Law and UNCITRAL. In any event the CDCJ considered that it was very important to avoid duplication of effort by international institutions.

8. If so requested by the Committee of Ministers and in the light of the priorities of the Council of Europe, the CDCJ is ready to consider, in more detail, aspects of problems which fall within its competence in particular problems linked to information technology and law and data protection.

1. The European Committee on Legal Co-operation (CDCJ) and the European Committee on Crime Problems (CDPC) have been invited by the Committee of Ministers to give their opinion on Recommendation 1431 (1999) on future action to be taken by the Council of Europe in the field of environment protection.

2. The CDCJ welcomed the adoption of this Recommendation and took note of the proposals of the Parliamentary Assembly which aim at increasing environment protection.

3. The Parliamentary Assembly recommended on the one hand to increase the efficiency of legal instruments already in existence in the field of the environment and to strengthen the co-operation between the Council of Europe and the other international organisations directly involved in environmental protection. On the other hand the Parliamentary Assembly proposed to examine the feasibility of elaborating new international legal instruments in this field.

4. However the CDCJ recognised that certain environmental questions being of a global nature could better be dealt with on a world wide basis. Nevertheless some valuable work has been undertaken by regional organisations eg the Aarhus Convention on access to information, public participation in decision making and access to justice in environment matters opened to signature on 25 June 1998 in Aarhus (Denmark).

5. The Council of Europe has already prepared substantial work in the field of the environment and the following three Conventions represent important steps taken at a European level:

- the Convention on the conservation of European wildlife and natural habitats (ETS 104) opened to signature in Bern in 1979 and has entered into force in 40 member and non-member States of the Council of Europe;

- the Convention on the protection of the environment through criminal law (ETS 172), opened to signature in Strasbourg in 1998, and now signed by 11 States;

- the Convention on civil liability for damage resulting from activities dangerous to the environment (ETS 150) opened to signature in Lugano in 1993 and now signed by 9 States.

6. The CDCJ considered that, before embarking on the preparation of additional instruments, attention needs to be focused on compliance and implementation of existing multilateral instruments concerning the environment.

7. As regards the Lugano Convention, which was prepared by a Committee of experts of the CDCJ, the CDCJ noted that the text aims at including a priori in the process of the industrial production the expenses linked to the prevention of damage and to civil liability which may ensue. The ambitious scope of the Convention and the desire to wait for the outcome of the European Union proposals in this field may have been some of the reasons why States have not ratified this Convention.

8. The CDCJ agreed with the Parliamentary Assembly on the necessity to strengthen co-operation between the Council of Europe and other international organisations dealing in depth with environment protection, such as the European Union and the United Nations Economic Commission for Europe and the United Nations Environmental Programme (UNEP) with a view to implementing the Biodiversity Convention (Rio, 1992) in member States of the Council of Europe.

9. Concerning the proposal of the Parliamentary Assembly to draft an amendment or an additional Protocol to the European Convention on Human Rights with a view to include a right to a healthy and viable environment in this instrument, the CDCJ considered that there were legal and conceptual problems with the creation of a substantive "right" to a healthy and viable environment in particular recognising its character as an individual right which could be invoked before the court. The CDCJ felt that, if the Committee of Ministers wished to consider this matter further, the Steering Committee for Human Rights (CDDH) should be given the opportunity to express its views.