During the consensus conference on 2 June at Cologne’s Higher Regional Court, the jury was able to attend the presentations of work packages 2 and 3, as well as the public debate on the various topics.
Based on the various conclusions reached by the working groups, the task of the jury was to indicate which points or subjects should be adopted, rejected or amended, after resolving any controversies that may have arisen within or between the groups.
The present article formalise the recommendations on which a consensus has been obtained.
Recommendations towards the creation of a European register of qualified judicial experts previously recognized by the Member States
Introduction
The aim of the EEEI and EE project is to identify the definition of minimum criteria for qualifying a person as a “judicial expert” in terms of competence and specific knowledge of procedural rules and ethics, in order to draw up a list of standards for the bodies responsible for maintaining the registers of experts in each Member State, and to facilitate the convergence of expert nomenclatures in order to maintain and update the fields of expertise at European level.
It is therefore not proposed to establish a new profession, that of “expert”, but to acquire, from all the professional sectors that have gradually been formed in the market, people who are defined as “professionals”, i.e., people who, in order to acquire their qualification, have obtained an academic title or have done professional practice or, have passed a qualifying examination, and do continue to update their competence, who are also specialised and capable to act as judicial experts for the court.
Within the Member States, traditional and long-established professions (lawyers, doctors, engineers, architects, etc.) coexist with more recently developed professions. In order to liberalise the professional markets, the European Union has struck a balance between economic interests in widening access to the market to facilitate competition and lower prices for services, and the interests of the community in the proper and qualified performance of the professions.
Professionals are represented and controlled by professional bodies that may be free associations, or public institutions, established or recognised by the State. The existence of such institutions does not preclude professionals from associating freely, possibly according to their specialisations.
Judicial experts are professionals chosen for the performance of their activities to support judiciary procedures.
The choice of a judicial expert is regulated by the Member States in various ways.
The activity — intellectual or technical — performed by professionals, including their activities as judicial experts, is considered to be the performance of services in the free market and is subject to the rules of free competition. Professional service activities are regulated by Directives 2006/123 (the so-called Bolkestein Directive) and 2005/36 on professional qualifications (EQF). Freedom of exercise and freedom of establishment are the principles that govern the internal market1.
The Member States have implemented the two directives, and within these frameworks, have introduced specific regulations for many professions. Indeed, professional activity is not only the expression of the economic freedom to carry out independent work, the protection of which is guaranteed by the European Charter of Fundamental Rights.
Furthermore, judicial expertise is an activity that, being in contact with the public, prosecutors and courts, must ensure that the recipients of the services receive a safe and appropriate service.
Judicial experts may therefore only use the title if they have obtained it in accordance with the rules laid down by their national legislations. Usually, such experts are entered into a register (or other list) kept by a body relevant to their basic professions, or the judicial expertise as such.
Registration bodies of judicial experts usually draw up a code of ethics. The registration of judicial experts, their suspensions, and cancellations, as well as the sanctions imposed by the body are generally recorded in the register.
Judicial experts are usually bound by their code of ethics and cannot escape compliance with it, on pain of sanctions imposed by the body that supervises them. Member States may even provide for criminal sanctions for violating the rules on the misuse of the qualification, or the abusive exercise of a profession.
The necessity of a European framework for judicial experts is today increasing. Due to the ever-increasing complexity of issues in many fields, judges, and prosecutors within the different Member States could face difficulties to find within their own jurisdiction judicial experts with the appropriate expertise; a European list of judicial experts would help the judges and prosecutors.
The following recommendations of the jury are based on the results of the working groups concerning the definition of criteria for judicial experts, the criteria for the registration bodies, the requirements for registration and the nomenclature, as presented and discussed at the Consensus Conference in Cologne on June 2nd 2022. The results of the working groups are attached as appendices.
1 – CJUE, 4e ch., 17 mars 2011, Josep. Peñarroja Fa, aff. jtes C-372/09 et C-373/09, Rec. CJUE I-01785.
