Good practice in civil judicial expertise in the European Union / Les bonnes pratiques de l’expertise judiciaire civile dans l’Union européenne E-Book

Béatrice Deshayes

• Herausgeber: Éditions Larcier
• Kategorie: Fachliteratur
• Serie: Europe(s)
• Sprache: Französisch
• Veröffentlichungsjahr: 2016

Seitenzahl: 324

Beschreibung

L’Institut Européen de l’Expertise et de l’Expert poursuit, parmi ses objectifs, l’identification des convergences possibles des systèmes d’expertise judiciaire nationaux et l’élaboration de propositions pour améliorer la qualité des expertises judiciaires conduites dans l’espace européen.

Cofinancé par la Commission européenne, le projet EGLE (European Guide for Legal Expertise) a permis l’élaboration d’un Guide des bonnes pratiques de l’expertise judiciaire civile dans l’Union européenne.

Préfacée par Giorgio Santacroce, Premier président honoraire de la Cour de cassation italienne et conclue par François Paychère, Président du GT-QUAL (Conseil de l’Europe), le présent ouvrage enrichit et complète le Guide d’une série d’analyses et de réflexions sur leur mise en œuvre.

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ISBN : 9782804495138

The collection Europe(s) gathers works relating to the European construction.

These works discuss, as applicable, the European Institutions or the rules that are adopted by them. Topics are selected based on current events, their concrete nature and their importance for the practitioners. They are covered in a clear, concise and concrete way.

Under the guidance of:

Paul NIHOULis Professor at the University of Louvain. His work focuses on Europe, the competition and the consumption. With some colleagues of his, he supervises the Journal de droit européen which is also published by Larcier. He is also a researcher at the University of Groningen, in the Netherlands.

Déjà parus dans la même collection :

NADAUD S., Codifier le droit civil européen, 2008

GARCIA K., Le droit civil européen. Nouveau concept, nouvelle matière, 2008

FLORE D., Droit pénal européen. Les enjeux d’une justice pénale européenne, 2009

PARTSCH P.-E., Droit bancaire et financier européen, 2009

LO RUSSO R., Droit comptable européen, 2010

VAN RAEPENBUSCH S., Droit institutionnel de l’Union européenne, 2011

MARTIN L., L’Union européenne et l’économie de l’éducation. Émergence d’un système éducatif européen, 2011

SCHMITT M., Droit du travail de l’Union européenne, 2011

MATERNE T., La procédure en manquement d’état. Guide à la lumière de la jurisprudence de la cour de justice de l’Union européenne, 2012

RICARD-NIHOUL G., Pour une fédération européenne d’États nations, 2012

ESCANDE VARNIOL M.-C., LAULOM S., MAZUYER E., Quel droit social dans une Europe en crise ?, 2012

SCARAMOZZINO E., La télévision européenne face à la TV.2.0 ?, 2012

LEDUC F. et PIERRE PH., La réparation intégrale en Europe, 2012

ONOFREI A., La négociation des instruments financiers au regard de la directive MIF, 2012

AUVRET-FINCK J., Le Parlement européen après l’entrée en vigueur du Traité de Lisbonne, 2013

BROBERG M. et FENGER N., Le renvoi préjudiciel à la Cour de justice de l’Union européenne, 2013

COTIGA A., Le droit européen des sociétés, 2013

BERNARDEAU L. et CHRISTIENNE J.-Ph., Les amendes en droit de la concurrence, 2013

MAHIEU S. (dir.), Contentieux de l’Union européenne, 2014

AUVRET-FINCK J. (dir.), Vers une relance de la politique de sécrutité et de défense commune ?, 2014

MÉNÈS-REDORAT V., Histoire du droit en Europe jusqu’à 1815, 2014

DEFOSSEZ A., Le dumping social dans l’Union européenne, 2014

VAN WAEYENBERGH A., Nouveaux instruments juridiques de l’Union européenne, 2015

CASTETS-RENARD C. (dir.), Quelle protection des données personnelles en Europe ?, 2015

PINON S., Les systèmes constitutionnels dans l’Union européenne, 2015

AUVRET-FINCK J. (dir.), Vers un partenariat transatlantique de l’Union européenne, 2015

VAN RAEPENBUSCH S., Droit institutionnel de l’Union européenne, 2e éd., 2016

PARTSCH Ph.-E., Droit bancaire et financier européen, 2e éd., 2016

NAOMÉ C., Le pourvoi devant la Cour de justice de l’Union européenne, 2016

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

AnnexProposal 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

“The European Commission support for the production of this publication does not constitute an endorsement of the contents which reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein.”

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.

* **

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.

* **

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.

* **

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 State.

1.3. Experts appointed and paid by the parties are specifically required to follow the good practices defined below as they are bound by law or oath, such as in Spain2 or in the United Kingdom,3 to certain obligations towards the judge and the Court which override their obligations towards the party which has appointed them.

1.4. In the absence of any oath or legal provision ensuring that the interests of justice prevail over those of the party that has appointed them, Experts who are then referred to as Private Experts and not as Judicial Experts, are not concerned by the provisions laid out in this text. Indeed, as their exclusive purpose is to provide technical help to the parties consulting them, their opinions can be recorded as evidence like any other procedural documents, but are at the very least affected by a lack of objective impartiality which rules out any assimilation with Judicial Experts.

1.5. However, when these Private Experts are registered on Judicial Expert lists and have sworn an oath either before or upon registration on these lists, they must abide by their duty to the judge and the Court, and must at all times show proper consideration of all the evidence of which they are aware. They should at all times uphold the truth owed to Justice and should thus be required to follow the rules of good conduct recommended in this Guide.

1.6. Experts can be individuals or legal entities (public or private laboratories, universities etc.) as long as, for the latter, at least one private individual within the legal entity is a Judicial Expert and takes on the responsibility for the report and as long as the organisation of the legal entity guarantees the independence of the Expert who is signing the report.

1.7. The Technical Expert’s or Expert Witness’s instructions are limited to the determination of the facts and to technical conclusions and/or to a professional opinion stemming from his4knowledge and/or research. Neither of the above will be expected or required to give a legal opinion. A Legal Expert can, when allowed by the domestic law of a Member State, provide help to the Court in researching the law.

1.8. For convenience, the term ‘Expert’ will be used hereafter instead of that of Judicial Expert as it has just been defined.

* **

1 CEPEJ, 2014 Report on European Judicial Systems, Edition 2014, (2012 Data): efficiency and quality of justice, Section 15.1, p. 441.

2 Art. 335-2 of the Spanish civil procedure law thus states that “when presenting his report, the expert will have to swear or vow to tell the whole truth, and that he has acted or will act, as the case may be, with the greatest possible objectivity, taking into account anything that could benefit a Party as well as what could be detrimental to it, and that he knows the criminal sanctions he may incur if he does not carry out his duty as an expert”.

3 In the United Kingdom the rules are determined by reference to CPR 35, PD 35 and the Protocol for the instruction of experts for civil cases and Crim PR 33 for Criminal cases.

4 Throughout this Guide, all references to he, his or him are understood to extend to and comprise she and her.

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

Text of the Guide

2.1. The Expert’s opinion is required when the judge, provided he has this power under the law of the Member State, is unable to take a balanced and detailed decision because he finds the available evidence to be inconclusive, or considers it necessary to have the Expert’s opinion on technical issues (financial, scientific, medical, artistic, linguistic etc.).

2.2. On questions of law, only Legal Experts can, when allowed by the law of a Member State, advise the Court. In all cases the power to decide and interpret the law remains within the judge’s exclusive jurisdiction.

2.3. An Expert should only be considered when there are no easier or more expedient means of proof to resolve the dispute.

2.4. The cost of the action should not be a barrier to its implementation. However, the judge and the Expert have to ensure that it remains proportionate to the value of the litigation matter in hand.

2.5. It should be noted in this regard that the value of the litigation may result not only from the monetary value of the case in relation to the amount of the claim and related compensatory damages but also of the importance of the case for a wider community, for the industry involved, or as regards the interpretation of the law in that it may lead to a precedent or new case law.

* **

Chapter III. Choice and Appointment of the Expert

Comments by

Katharina BLEUTGE

Institut für Sachverständigenwesen, Germany

Introduction

1. General points

The European Expertise and Expert Institute (EEEI) finalized its work on the EGLE project (European Guide for Legal Expertise) in 2015. Thanks to this project supported by the European Union, a Guide to Good Practices in Civil Judicial Expertise in the European Union was born. In seven chapters, it defines the essential principles of the Expert testimony in civil procedures in the European Union.

This contribution pertains to Chapter III – “Choice and appointment of the Experts in a civil procedure”. The proposals of the Guide are based on the recommendations made by workgroup no. 1. This workgroup had previously intensively focused on the questions linked to the appointment of Judicial Experts. The core message with regards to the appointment of a Judicial Expert is that one should call upon these Experts in civil procedures if the judge needs the technical support for an Expert as a basis for his judgement. One of the key principles here is that the appointed Expert is not allowed to answer any legal questions (except for an expertise pertaining to foreign law). Another recommendation is the fact that one should not decide whether or not to appoint a Judicial Expert based on the costs incurred; they should only be a criterion if there is a significant unbalance. Moreover, there is no need to appoint an Expert if there is any other swifter and more expedient means of proof available.

Furthermore, the workgroup worked on verifying the possibilities of finding qualified Experts: where and how to find Experts, who chooses the Experts, what should be respected when they are appointed, and why an Expert can be thrown out of the procedure once he has been appointed, and if need be replaced by another Expert. The workgroup recommendations can be found in the different paragraphs of the Guide.

2. Good practices of European civil judicial expertise

Based on the workgroup recommendations, one can find in the Guide’s paragraph “Choice and Appointment of the Expert”, proposals pertaining to the “Eligibility criteria to be appointed Expert”, “Appointment Procedure” and “Challenging the Expert’s appointment”.

2.1. Eligibility criteria to be appointed as an Expert

This paragraph develops the idea of a list of European Experts. Qualified Experts who can be chosen for cross-border litigation need to be enrolled on this list, which has to be available on the Internet. The Experts which will be appointed without being on this list will need to sign “a charter of European expertise principles” and swear an oath in front of the Court. Moreover, the list must mention the speciality, experience and linguistic skills of the Expert. In order to be enrolled on this list, the Experts will need to fulfil certain criteria (see the results of workgroup no. 3), and their compliance will be regularly checked by a competent national authority or a European authority which still needs to be created. Among the necessary qualifications figure technical and procedural knowledge. Moreover, the Experts will need insurance. Another condition is that the enrolled Experts need to respect a European ‘code of ethics’, which will essentially require the Expert’s neutrality and their personal ability (absence of criminal record etc.). The national lists of Member States should take an inspiration from these European requirements.

2.2. Appointment Procedure

This section includes dispositions pertaining to the appointment procedure. The Expert should be directly appointed by the Court in charge of the procedure after having heard the parties, rather than by any other entity. The Court should have the authority to call or write to the Expert before appointing them, to check whether the Expert is competent for the mission, if they are available, and if there is no conflict of interest. The Experts appointed by the parties can be eligible in a civil procedure, under certain conditions of independence, oath, competence etc. If the Expert accepts the case, they will need to make a declaration of independence and reveal any possible links they may have with one party or the other.

2.3. Challenging the Expert’s appointment

This section pertains to the possibility of excluding a Judicial Expert from the procedure due to their lack of impartiality and any potential conflict of interests that may stem from it. It is to the Court to adjudicate on this request within a reasonable debate, and after having heard the Expert. In some cases, if justified, the Expert may also be replaced by the Court, on the request of the parties or the Expert themselves.

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Text of the Guide

Section I – Eligibility criteria to be appointed Expert

§ 1 Registration on a national or regional list, and/or on a list of European Experts

3.1. In absolute terms, concerns for transparency and for the efficiency of justice in a unified European judicial space as well as for the quality of Expert opinions would be well-served by the creation by all Member States of lists of Judicial Experts, that would be easily accessible to citizens over the Internet, as well as of a list of European Experts, mainly for cross-border disputes, that would allow judges in the Member States of the European Union to easily find the most appropriate Expert for a given case. These lists should be established based on a harmonised nomenclature of the fields of competence and identical criteria.

3.2. Far from limiting the free market and the free exercise of the Experts’ activity within the EU, these lists, since they are public, would help foreign judges and parties appoint Experts in countries other than that in which they usually work. These lists would also put an end to the obstacle created by the practice noted in many Member States of making discretionary choices from obscure lists drawn up according to unknown criteria.

3.3. Due to the quality guarantees inherent to these lists, which are designed not as mere directories but as the public acknowledgement of competence, morality and reputation, the judge, who retains complete freedom of choice, would have to justify this choice when appointing an Expert outside these lists, when the case referred to him is a cross-border dispute or has cross-border consequences.

3.4. These lists, and especially the list of European Experts, which would comprise Experts who are already registered on a national list, should include the Expert’s past experience and his working languages. They could also usefully mention the countries in which the candidate has had additional experience which may enable him to carry out his work there usefully. Indeed, in a small number of specialities such as psychiatry or psychology, knowledge of the cultural idiosyncrasies of the population to which the person who is the focus of the expertise belongs may be useful in order to issue a qualified opinion.5

3.5. It is also possible to set up a European directory of all Experts by bringing together existing national lists under certain conditions of harmonisation. This could form a database of about 85,000 to 120,000 names of Experts. Such a database associated with a powerful search engine could be a useful tool for European Union judges and citizens by making it possible to publish all existing lists. However, it is important to keep in mind that most Expert advice is sought in local or regional disputes and thus does not require looking for an Expert geographically further afield as this may be less cost effective due to higher travel expenses.

3.6. Supervised by Member States, the creation of a more limited list of European Experts made up of National Experts who have volunteered to work in cross-border litigation and already have a substantial amount of experience in acting as an Expert at national level is likely to foster the emergence of a single nomenclature and of common registration criteria for the establishment of national lists.

3.7. This list of European Experts for cross-border litigation could naturally also be used for litigation within a Member State. Namely, this may be when the national judge finds that there is no sufficiently qualified Expert in his jurisdiction due to the extreme technical sophistication of the case, or when he fears that the National Experts will lack objectivity due to being directly or indirectly linked to the parties or to State organisations in charge of monitoring the implementation of standards regulating the activity investigated in the case. By appointing a foreign Expert, the judge may thus wish to guarantee the impartiality of the panel of Experts that has been set up, or, when faced with very costly investigations, may wish to put several Experts in competition to obtain the fairest price.

3.8. However, in view of the potential costs of such a proposal, the requirements for the creation of a list of European Experts must in fact be analysed further. If its usefulness in cross-border matters is more sufficiently proved by studies and statistics allowing to precisely determine the needs and better determine the number of Experts necessary, paragraphs 3.9 to 3.16 below would apply.

3.9. The creation of a list of European Experts would doubtless require the creation of a specific body at European level to manage this list. The organization and character of this body would require further discussion. The authorities in charge of drawing up national lists could be represented in this body.

3.10. This body in charge of registrations and re-registrations on the list of European Experts could be invested with the power of supervising the correct application of the registration criteria in the Member States.

3.11. To be registered on these lists, for a maximum and renewable period of five years, the Expert should prove that he meets certain requirements which are set out in more detail in Chapter VI on the Status of the Expert below, which can be assessed either by a national judicial or administrative authority, or by specific private institutions that comply with national rules and regulations (such as professional orders, if they exist) or by a European body if it is created.

3.12. With regard to registration on the list, the competent organisation at European level, and national organisations insofar as it concerns them, must at the very least check the Expert’s technical competence by seeing proof of (i) the Expert’s qualifications, (ii) professional curriculum, (iii) knowledge of investigative techniques, (iv) his legal knowledge of the standards governing the exercise of his main activity and the rules relating to Experts’ obligations and rights, as well as of the guiding principles of fair trial. These bodies must also ensure that the Expert has taken out sufficient civil liability insurance to cover, without any territorial limits, his activity as a Judicial Expert. This insurance coverage must be sourced from a credit-worthy insurance company.

3.13. Even if the organisation that is competent to compile the list, particularly if it is a Court, cannot replace universities in judging the Expert’s qualifications, it can nevertheless proceed to verify the Expert’s knowledge and skills by referring to the following points in particular:

– university degrees,

– professional experience listed on his CV,

– professional reputation,

– membership of professional associations,

– references,

– the Expert’s professional qualifications, together with initial and continuous training,

– relevant publications,

– prizes obtained,

– courses and teaching experience.

3.14. These organisations will have to regularly ascertain, for example every five years, that the registered Expert still satisfies the criteria which allowed him to register, and check that he has fulfilled his obligation of continuous training both in his core profession as well as in his work as an Expert and in his judicial knowledge in terms of proceedings.

3.15. Registration on the list and periodic renewals on these lists should be subject to the adherence to and endorsement of a Code of Ethics of the European Expert, of which a draft is presented as an annex to this document and which guarantees in particular but not only, the Expert’s impartiality and objectivity, and the lack of any criminal record or professional breach of conduct.

3.16. Experts whose candidacies are rejected by the authority in charge of establishing the list, either upon first request or upon their renewed registration the list, should be entitled to all the avenues of appeals before an independent authority whose decisions will themselves be subject to judicial review.

§ 2 Oath and Endorsement of the Guide to Good Practices

3.17. The Expert should be held to the swearing of an oath before the competent judicial authority at the time of his registration on the national list and/or on the list of European Experts. If a judge in charge of a dispute chooses to appoint an Expert who is not registered on one of these lists, he will hear the Expert’s oath directly.

3.18. By taking this oath, the Expert would be swearing to put his skills at the service of the law with probity, objectivity, loyalty, independence and impartiality, and to respect the recommendations of this Guide to Good Practices and appended Code of Ethics.

3.19. When the Expert is appointed by a party in Court proceedings, he should also have to swear that, both in preparing his report and in his oral testimony, his duty to the judge and to the law has taken or will take precedence over any obligation towards the party which appointed and/or paid him, that he has abided by this duty and will continue to abide by it.

Section II – Appointment Procedure

3.20. Ideally, the Expert should be chosen directly or allowed to make a statement by the judge hearing the case, having heard all the parties involved, rather than by any other body. However, when the parties agree on the choice of the Expert or Experts, the judge should respect this choice.

3.21. The judge should ensure that there is an adequate number of Experts in each field and should try to avoid appointing the same Expert again while excluding others who have the same qualifications. In each instance, the judge must make sure to appoint the most suitable Expert for the circumstances considered.

3.22. Before appointing an Expert, the judge or party should be able to call or write to him in order to verify that he has the necessary competence to carry out the instructions for which he is approached, that he is available, and that there is no conflict of interest, or where one potentially exists, that it has been declared.

3.23.