Good practice in civil judicial expertise in the European Union / Les bonnes pratiques de l’expertise judiciaire civile dans l’Union européenne: Towards a European expertise / Vers une expertise européenne

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The European Expertise and Expert Institute pursues, among its objectives, the identification of possible convergences of national judicial expertise systems and proposes developments to improve the quality of judicial expertise carried out in Europe.

Co-financed by the European Commission, the project entitled EGLE (European Guide for Legal Expertise) has resulted in the Guide of good practices in civil judicial expertise in the European Union.

With a foreword by Giorgio Santacroce, Honorary First President of the Italian Court of Cassation and the conclusion by François Paychère, Chairman of the GT-QUAL (Council of Europe), the present book enriches and completes the Guide with a series of analysis and reflexions on their implementation.

Under the guidance of Philippe Jacquemin, vice-president and Béatrice Deshayes, deputy general secretary of the Institute, the text is a collection of contributions from Katharina Bleutge, Gilles Cuniberti, Luboš Dörfl, Lyubomir Gerdzhikov, Manfred Kaufmann, Jean-Raymond Lemaire and Alain Nuée.

Content

Foreword

by Jean-Raymond LEMAIRE

Presentation of the Jury

Preface

by Giorgio SANTACROCE

Object of the Guide

Chapter I. Definitions and limits

Chapter II. Conditions regulating when one should resort to judicial expertise

Chapter III. Choice and appointment of the Expert

Comments by Katharina BLEUTGE

Chapter IV. The expertise procedure

Comments by Prof. Gilles CUNIBERTI

Chapter V. Expert report

Comments by Dr Manfred KAUFMANN

Chapter VI. Remuneration of the Expert

Comments by Lyubomir GERDZHIKOV

Chapter VII. Statute of the Expert

Comments by Luboš DÖRFL

Conclusions

Annex

Proposal of a code of ethics of European Judicial Experts

by Alain NUÉE

General conclusion

by François PAYCHÈRE

Bibliography

Members of the Working Groups

EEEI factsheet

Table of contents

Foreword

Jean-Raymond LEMAIRE

President of the European Expertise and Expert Institute

As president of the European Expertise and Expert Institute, I am proud to introduce this Guide to Good Practices in Civil Judicial Expertise in the European Union.

It stems from over ten years of research, debates and discussions between stakeholders across Europe to improve judicial procedures and to ensure that citizens and companies increase their trust in justice, whether it be in their own Member States or when they are living or working in a host country and have to deal with cross-border issues.

For close to two years, with the financial support of the Directorate-General for Justice of the European Commission, under the name of EGLE – European Guide for Legal Expertise – a large community of judges, lawyers, Judicial Experts, academics and students of law regularly came together to discuss the essential aspects of civil Judicial Expertise, find ways of improving the various existing systems and to provide a working basis of the best practices in Europe.

The method of the consensus conference proved to be an extremely useful tool in building a consensus on the heterogeneous realities of judicial expertise and Judicial Experts. It made it possible to bring together in a participatory process the various practices and experiences from very different systems, from common law and civil law, and to draw out the best of these practices in order to propose a common foundation to improve civil judicial expertise.

The EGLE project took place around 25 organized meetings in 10 European countries, but also by email, conference calls and through the sharing of documents. Informally, the discussions that took place outside of meetings also paved the way for reflection by enabling the members of the working groups to discover other systems, other experiences and other practices.

The project was carried forward by the members of the working groups, the participants of the EGLE plenary conference, organized at the Italian Court of Cassation in Rome on 29 May 2015, who shared their reactions and input, and last but not least, by the Jury of 9 European figures who discussed, debated, and managed to draw from all these exchanges the essential practices from each country and experience.

The Jury met in camera for the first time in Rome and then for two more intense work sessions of which the last took place in Lisbon in September 2015. They highlighted the best of the various civil judicial expertise systems and in this Guide they put forward the outcome of their work, the points of convergence between the various Expert proceedings, namely of common law and civil law, of the EU States, whether older or more recent members.

The Jury’s conclusions contain many recommendations and ideas, as much for the countries where the recruitment, appointment and monitoring of the quality of Experts are very organized as for countries where this is not yet the case.

They also offer actual points of convergence between technical Experts appointed by judges and Expert witnesses, which is an unexpected but very important aspect of this project.

In sum, the Guide to Good Practices in Civil Judicial Expertise in the European Union is the result of work led by European professionals whose main aim is to improve and harmonize very different practices, based on a will to determine a strong, democratic, European model, at the service of the citizens and companies of the European Union. This consensus was reached in spite of current procedural and cultural differences and of any remaining wariness.

Participants learned to know and trust each other; this is one of the successes of this project, and not the least.

Acknowledgements

We would like to thank very warmly all the members of the Jury, with a special mention for its President, Alain Nuée, as well as all the members of the working groups and of the organisation committee, the interpreters and translators, our partners, and the hosts of the meetings in Europe, for all their time and involvement, for their hard work and for their belief in the project.

Our most respectful thanks also go to President Giorgio Santacroce, First President of the Italian Court of Cassation, who encouraged and welcomed us in the institution that he presides. We would also like to thank the Directorate General Justice of the European Commission for its financial support, but also for its precious advice and encouragement throughout the project.

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Presentation of the Jury

Simona CRISTEA

Magistrate, Full Professor at the University of Bucharest, Faculty of Law

Romania

Christiane FÉRAL-SCHUHL

Lawyer, founding partner of Féral-Schuhl / Sainte-Marie and past President of the Paris Bar

France

Eugenio GAY MONTALVO

Vice-President emeritus of the Spanish Constitutional Court

Academician

Spain

Alain NUÉE

President of the EGLE Jury and Organizing Committee

Honorary First President of the Appeal Court of Versailles

President of the Orientation Committee of the EEEI

France

Anne SANDERS

Associate Professor for Civil and Comparative Law

University of Bonn

Germany

Daniele SANTOSSUOSSO

Professor of Commercial Law at the University of La Sapienza in Rome

Italy

Jacques SLUYSMANS

Founding Partner at Van der Feltz Advocaten in The Hague and Professor of Expropriation Law at Radboud University in Nijmegen

Netherlands

Duarte NUNO VIEIRA

Full Professor of Forensic Medicine, Ethics and Medical Law, University of Coimbra

President of the European Council of Legal Medicine

Portugal

Thomas WALFORD

Governor of the Expert Witness Institute & Chief Executive of Expert Evidence Limited

United Kingdom

Preface

Giorgio SANTACROCE

Honorary First President of the Italian Court of Cassation

I was particularly happy, both personally and in the name of the Court of Cassation, to welcome to the solemn and austere Rome Courthouse, which is the headquarters of the Italian Judiciary Summit, the Plenary Conference on Civil Judicial Expertise in the European Union, organized by the European Expertise and Expert Institute and the European Commission (DG Justice).

I would like to renew my warm greetings and sincere thanks to Mr Jean-Raymond Lemaire, President of EEEI, with whom I have built a strong and fruitful collaboration since the time when I was President of the Court of Appeal of Rome, when we started to try and highlight any possible convergence between the field of expertise and the impact of the role of the judge hearing the conclusions, through debates about the different practices used by the different European judicial systems.

I would also like to warmly thank Mr Alain Nuée, Honorary First President of the Court of Appeal of Versailles and Chairman of the EGLE project (European Guide for Legal Expertise), and Mr Philippe Jacquemin, Vice-President of EEEI.

The goal of this Conference was to draft the guidelines to good practices for expertise, so that it could become homogeneous and help promote the standardization of the types of procedures in the judicial systems of the European Union Member States, and thus eliminate any possible hurdles which could limit the specific contribution of the Expert in the civilian sphere. This conference and the work that followed led to the creation of this consensual Guide to Good Practices which will no doubt improve the quality of the work of Experts, mainly helping them identify the origins of the problems which they have to examine.

And actually, the project carried by the institute which Mr Lemaire leads is much more ambitious and offers to achieve a plurality of means to increase the quality of expertise. Among those, the definition of relevant and ad hoc criteria to select Experts based on their professional qualifications, the creation of a unified list relying on national lists which exist in the different countries of the Union, and the definition of a common procedure which would ensure that each Expert has the necessary professional qualities. This possession could be verified periodically if necessary, not only to ensure a good qualified representation of Experts in specialized disciplines and a good level of rotation among them which would be appropriate, but also to control the quality and quantity of the activity pursued, the respect of the principles of impartiality and independence which should be at the heart of the work of any Expert and their compliance with the code of ethics for each professional body. Therefore, it is advisable to look for methods on how to choose Experts, methods based on stringent morality and competence parameters, as well as those of trust, given how important, and even key, the scientific input of an Expert can be to provide the judge with the exact reconstruction of facts, the causes of the disorder, and to validate the facts presented by the parties in an adversarial manner.

In the Italian doctrine and jurisprudence, we say and repeat that the expertise is not evidence, nor can it supplement a lack of evidence, but it is there to give a technical opinion, which is necessary or at least useful to assess the elements of proof already acquired, or even that its goal is to find a solution to questions which require specific technical knowledge. This is a direct continuation from the role and appointment of an ‘Expert’ who – expressly in the civil trial and implicitly in the criminal trial – is asked to carry out the function of an auxiliary to the judge (Art. 61, It. CCP), in the shaping of their conviction and the motivation of their decision. This function as an auxiliary is – one should point out – visibly increasing due to the particularity of certain processes and the increasing techno-scientific incidence of the matters concerned (one only has to think of DNA tests).

According to the doctrine, and using a mellifluous and efficient expression, the Expert is described as being ‘the eye of the judge’, which shows how great a need there is for the judge to pay even more attention to the choice of Experts. Thus, in Italy (and no doubt in many other Member States), the usual codes do not deal with this issue, leaving the choice of the Expert to the judge’s discretion, who often limits him or herself by promoting purely distributive criteria or favouring the Expert who has promised a quick turnaround on the report requested.

Adopting recommendations at a European level will thus allow us to redefine the procedures to create and revise these lists, and to create common procedures which will tend towards the strict compliance with the adversarial principle, a greater swiftness in writing and handing in the report, and closer monitoring of the allocation of costs among Experts. Finally, these joint processes should help improve the estimation and liquidation of damages, which, no doubt due to the specificity of certain issues, evaluations can deviate a lot.

Yet it also seems that one should not underestimate the need for a constant tracking of the progress of the Expert’s mission, especially when it comes to the report hand-in deadlines, the respect of the rules concerning the adversarial principle, the commitment and the diligence required to carry out the mission given. One should not forget that while the assessments made by the Expert are not binding, it is nonetheless true that the expertise is an objective source of evidence for the judges, that allows them to decide without pushing the investigation any further. The expertise then means the judge does not have to provide further justification for the reasons why they agree with the Expert’s conclusions, as long as the parties do not present any opposing arguments or when the expertise is irrelevant.

Once more I would like to emphasize the commendable nature of this initiative which promotes at a European level the creation of rules and practices that all the European Union Member States will share so that high quality Experts can be identified and appointed, and so we can share the same regulations, with each of us aware of its extremely delicate aspect and practical importance.

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Object of the Guide

0.1. The good practice recommendations in this Guide aim to strengthen the trust that judges, litigation parties and their counsels and, more generally, European Union citizens have in the opinions provided by Judicial Experts in Europe, to improve the quality of judicial decisions and to ensure the interoperability between Member States, in particular as regards cross-border litigation. In order to achieve these goals, these recommendations intend to ensure the recognition in all the European Union of Judicial Expert opinions provided by Judicial Experts from the Member States and to harmonize the standards applicable to judicial expertise and to the status of the Expert.

0.2. Most of the recommendations may be immediately implemented, others require the creation of ad hoc bodies, and others still, in certain Member States, may require the adaptation of civil procedure rules.

0.3. Their rapid generalization in all Member States would doubtless be facilitated by the creation of an independent civil procedure specific to cross-border litigation. Like the European Order for Payment, this procedure would be applied alongside existing procedures in the Member States. It would also make it easier to appoint Judicial Experts from any of the European Union States, by requiring that Experts who wish to work beyond the borders of their own States be familiar with only two procedures, that of their State of origin and this European Expert procedure.

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Chapter I. Definitions and limits

Text of the Guide

1.1. The following overarching principles should be applied to all Judicial Experts, be they appointed by the Court, by both parties, or by one or other of these parties with the aim of informing the judge on particular technical points.

1.2. They can therefore be applied, under certain conditions, to the three following categories of Experts, whose existence has been noted by the European Commission for the Efficiency of Justice (CEPEJ):¹

• Technical Experts, who put their scientific and technical knowledge on issues of fact at the Court’s disposal.

• Expert Witnesses, who provide opinions from their expertise in technical matters to clarify the parties’ arguments.

• Legal Experts who can be consulted by the judge on specific issues regarding the rules, practices and rights applicable in foreign law, and more particularly on the law of a non-EU Member