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Fewer procedures, more solutions?

In November 2018, the Dutch Minister of Legal Protection presented plans for the revision of the system of subsidized legal aid in the Netherlands. The aim of these plans are, in short, that more disputes are settled without judicial intervention. According to the Minister, too many people choose to start legal proceedings when they are in a conflict, whereas this should be the last resort.The Minister wants more disputes to be resolved through Alternative Dispute Resolution (ADR). The proposal is therefore to install a new authority, which will assess whether someone is entitled to subsidized legal aid or should seek other remedies, such as mediation or a debt relief arrangement.

Lots of lawyers have expressed their concerns about these new plans. The new authority could possibly form an undesirable barrier for the right to access to court, which is enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (CFREU) and Article 6 of the European Convention on Human Rights (ECHR). Limiting access to legal aid could also lead to class justice. People who can afford it will always have access to a lawyer, whereas people with little money are dependent on whether the new authority assigns them one.  The government especially wants to use ADR for matters on divorces, rent and labour disputes and debt problems. These topics are precisely the ones many people with less financial means face.

According to the Minister, everyone is entitled to access to a dispute resolution mechanism, but not everyone is entitled to go to court. The new motto is: “Fewer procedures, more solutions”. However, the question is whether forcing people to choose for ADR and limiting the amount of legal aid that is provided is not an unjustified infringement of the right to access to justice. 

Article 45 of the European Directive on alternative dispute resolution for consumer disputes states that:

The right to an effective remedy and the right to a fair trial are fundamental rights laid down in Article 47 of the Charter of Fundamental Rights of the European Union. Therefore, ADR procedures should not be designed to replace court procedures and should not deprive consumers or traders of their rights to seek redress before the courts. This Directive should not prevent parties from exercising their right of access to the judicial system. In cases where a dispute could not be resolved through a given ADR procedure whose outcome is not binding, the parties should subsequently not be prevented from initiating judicial proceedings in relation to that dispute. Member States should be free to choose the appropriate means to achieve this objective. They should have the possibility to provide, inter alia, that limitation or prescription periods do not expire during an ADR procedure.

The European Court of Justice also ruled in 2010 that the principle of effective judicial protection of Article 47 of the Charter of Fundamental Rights of the European Union also means that it must not be impossible for legal persons to rely on that principle. According to the European Court: “it is for the national courts to ascertain whether the conditions for granting legal aid constitute a limitation on the right of access to the courts, which undermines the very core of that right, whether they pursue a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve“.

It is still unclear in what way the new plans of the Minister will exactly take shape. In any case, he will have to take the requirements of Article 47 of the Charter of Fundamental Rights of the European Union into consideration. The proposed new authority must not form an insurmountable obstacle for access to justice.  

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