MARS 2012 – COLLOQUE DE BRUXELLES
The future of civil judicial expertise in the European Union State of play and proposals
La complexification des sociétés occidentales et la multiplication des litiges transfrontaliers conduisent à un recours de plus en plus fréquent à des expertises dont la qualité doit être reconnue par tous les pays et tous les citoyens de l’UE.
Le projet EUREXPERTISE, subventionné par la Direction Générale Justice de la Commission Européenne animé par l’EEEI (Institut Européen de l’Expertise et de l’Expert) a, parmi ses objectifs, le recensement des différentes procédures d’expertises civiles dans l’UE ainsi que les différents statuts des experts de justice.
Cette cartographie de l’existant est réalisée en concertation avec la quasi-totalité des Cours suprêmes de l’UE.
Allemagne / Autriche / Belgique / Bulgarie
Chypre / Danemark / Ireland / Italie
France / Grèce / Hongrie / Lettonie
Lituanie / Luxembourg / Malte / Norvège
Pays-Bas / Pologne / Royaume-Uni / Suède
République Tchèque / Roumanie
Un Groupe de travail européen composé de magistrats, d’avocats, d’experts, de juristes, a dégagé des pistes de convergence à partir de cet inventaire.
Ces propositions de convergence sont actuellement soumises à la critique de nombreuses personnalités européennes.
L’ensemble de ces travaux et leurs conclusions ont été débattus à l’occasion d’un Colloque européen qui s’est tenu à Bruxelles les 16 & 17 mars 2012.
Les actes de ce colloque serviront de base à un Livre blanc de propositions pour harmoniser, autant que faire se peut, les procédures d’expertises civiles et le statut des experts dans les pays de l’Union Européenne. Ce Livre blanc sera remis à la DG Justice de la Commission Européenne au plus tard le 30 juin 2012.
Les principaux thèmes qui ont été étudiés et débattus lors du colloque sont les suivants :
- la désignation de l’Expert,
- la mission de l’Expert,
- le déroulement des opérations d’expertise,
- le rapport d’expertise,
- le coût de l’expertise,
- le statut et la déontologie de l’Expert,
- les compétences de l’Expert et leur évaluation,
- la formation de l’expert,
- la responsabilité de l’Expert,
- le libre exercice dans l’Union européenne.
M. Jean-Raymond Lemaire, expert and president of EEEI
M. Bostjan Zupancic, Slovenian Judge of the European Court of Human Rights
Ms Imgard Griss, former President of the Austrian Supreme Court
M. Daniel Chabanol, former President of the Administrative Appeal Court of Lyon, honorary member of the Conseil d’Etat
RECOMMENDATIONS WORKSHOP 1 : “APPOINTING AN EXPERT : MISSION AND EXPECTATIONS”
- Principles regulating the use of judicial expertise
Judicial expertise is a court-ordered appraisal or implemented by the parties with the judge’s approval or under his control.
It should be ordered only if it is necessary to solve the dispute, if there are no easier, quicker or cheaper means of evidence.
- Conditions and tools available to the judge and/or the parties to select an expert
A European-wide frame of reference should be established, periodically reviewed and publicly available. It should allow the judge to accurately pick a relevant expert who will have been subject to review, including on the level of ethics, either by a national judicial or administrative authority, or by a recognised professional order, or by a yet-to-be-determined European entity, and who will provide guarantees of technical competence, impartiality and independence.
- Type, content and form of the mission – the expert’s autonomy
The expert’s mission must be restricted to technical questions.
This mission must be defined as precisely as possible since it binds the expert’s activity.
The judge can, on his own initiative or at the parties’ request, change the expert’s terms of reference, depending on the progress of his mission, which has to mandatorily comply with the principle of adversarial debates.
RECOMMENDATIONS WORKSHOP 2 : EXPERTISE PROCEEDINGS AND THE EXPERT’S REPORT
- Judge’s control over the expert proceedings
The expert’s independence does not exclude a monitoring by the judge :
- the judge must have the necessary resources to manage the case (dealing with incidents related to the expert’s person, to the scope of the mission) and to monitor the requirements for a fair trial during the expertise proceedings (reasonable time frame, contradictory procedure, reasonable costs)
- the expert has the right to seek directions in writing from the judge in any matter to do with the case
- the judge should on his own motion, having heard the parties, or at the parties’ request, be able to restrict or extend the expert’s mission, within the observance of res judicata, or to extend the timeframe of the mission,
- the judge should be able, on his own motion, and having heard the parties, replace an expert.
- At the beginning of the expertise, the expert should agree with the court a preliminary timeframe and /or stages for completion of the report.
- Requirements for a fair trial
The possibility for the parties to effectively discuss the expert’s technical findings before the expert submits his opinion entails that :
- they know what evidence has been submitted to the expert’s analysis and the technical basis on which the conclusions are reached
- they have his substantiated technical opinion in writing prior to the hearing before the judge.
The judge is the guardian of the adversarial nature of the expert examination.
In one of the groups a consensus could be reached on the proposal that there should be a preliminary report in all cases.
In the other group there was an agreement in principle with the formal disclosure of the expert opinion between the parties but it was not held necessary that there is a preliminary report. Other methods of disclosure were discussed such as exchange of information or a meeting.
- The report
The preliminary report, if there is one, should have the same structure as the final report.
The report that closes the expert examination and should be submitted to each of the parties before they present their claims and requests to the judge should thus include, in the expert’s as well as the judge’s language :
- a summary of the entrusted task,
- the several steps of the expert’s investigation
- the list of evidence examined by the expert and the list of evidence retained,
- presentation of the investigations carried out by the expert,
- a description of the findings made by or on behalf of the expert,
- the analysis done of said evidence by the expert,
- The observations made by the parties on the preliminary report and on the expert’s answers therein,
- the expert’s reply to and detailed technical opinion on each of the judge’s questions, unless the expert states why he is unable to reply to one such question
- a detailed statement of time and expenses incurred by the expert for his work
On the judge’s own motion or at the parties’ request, the expert can be called upon to complete or clarify his report either orally or in written form.
Having discussed the structure and content of the report in the UK, the group thought that this solution would give the necessary structure without being too prescriptive.
RECOMMENDATIONS WORKSHOP 3 : “QUALIFICATIONS, COMPETENCE AND ASSESSMENT OF EXPERTS”
- A well-known competence, identified and recognizable
How can we certify the expert’s prominence, independence and competence with regards to the European courts ?
- A register should be drawn up at a European level following a registration procedure by gathering the existing registers in the various European Union countries. The national competent authority will provide information on the expert’s availability for an European assignment.
- Registration at a national level implies a level of technical competence, sufficient training in the guiding principles of the fair trial and in procedural rules as well as in the expert’s code of conduct and in expert procedures, and the ability to write a report in an understandable manner for all parties involved.
- On a European level general guidelines will be developed on criteria for abilitation.
- Each member state must thus implement a registration procedure allowing it to assess the candidate’s degrees, his professional experience and his morality and his knowledge on expertise proceedings.
- At a European level there should be developed a set of transnational procedural rules regarding expertise and the expert.
- Qualification of experts
Should one appoint an entity which can attest that the legal expert has undertaken adapted and up-to-date training in proceedings ?
- For a renewal of his abilitation the expert has the duty and obligation to undertake continuing professional development covering his area of competence, as well as the proceedings rules which regulate expert examinations and expert practices in his specialty. And it should be verified by a national abilitation body.
- The assessment of experts
Should the expert be attached to a standardised evaluation entity ?
- Registering means that the authorities drawing up the register must regularly reassess the experts on the register by ensuring, among others, that they have undertaken continuing professional development training and by obtaining the opinions of the judges who referred them. The opinions of the authorities must take into account the quantity and quality of reports submitted.
- The judge should take part in the assessment of the experts.
RECOMMENDATIONS WORKSHOP 4 : THE STATUS AND ETHICS OF EXPERTS : FREE EXERCISE AND LIABILITY
- One status
The designation of the expert is by reference to a body of rights and duties.
- One code of ethics, possible penalties
To ensure compliance with these duties it will be necessary to establish a European wide body of regulations and ethical principles with a means of ensuring compliance. Compliance with this body of regulations and ethics will be a determining factor in the authority of the expert to practice and to produce reports and testimony in legal proceedings.
The code of conduct needs to take into account the ethical obligations of the expert to the legal process.
- Free exercise and liability
The francophone and anglophone workshops agree that a principal ethical obligation of the expert is to maintain sufficient professional insurance for the protection of the clients and other parties affected by errors made in the production of expert testimony and reports.
Mrs Grandjean’s synthesis
Report on the EUREXPERTISE project, proceedings of the Symposium in Brussels of the 16th and 17th
March 2012, by Patricia Grandjean, councillor at the Court of Appeal of Versailles, 25 March 2012
Mr Vigneau’s synthesis
General summary of the symposium on the future of civil judicial expertise in the European union
Brussels, 16th and 17th March 2012, by Vincent Vigneau, First Vice-president at the Superior Court of Nanterre
Address: Bruxelles, Belgique
Date: 16 March 2012