Agora #92
46 - 48
The States are obligated to ensure that legal aid systems are in place to guarantee that all individuals regardless of their financial status, have access to justice
If you ask the modern version of the Encyclopaedia Britannica, which would be to say AI, to comment on the “right to justice cannot be a privilege reserved for those who can afford to pay exorbitant legal costs”, it would propose a vast literature to you [1].
With all due reservations about the reliability of Artificial Intelligence, we take it as a basis for developing our concept
In cases brought by their own employees before the Court of Justice of the EU, the main EU institutions entrust the defence of their interests to lawyers from their own legal service, which implies that even if the Court rules against the worker, the costs they will have to bear will remain limited and reasonable.
This is not the case for Agencies, especially Regulatory agencies which, not having their own legal service, entrust their defence to external lawyers, often from law firms known for high levels of fees and expenses.
Therefore, in the event that the losing party is the Staff member, the amounts that the Court may order them to pay can be extremely high, unbearable both for the worker (let’s not forget that, in Agencies, the vast majority of staff are precarious, therefore with low salary levels) and for the Trade Union that should support them in the appeal.
In a fair legal system, the right to justice cannot be a privilege reserved for those who can afford to pay exorbitant legal costs: justice must be accessible to all. When legal costs become excessive, this principle becomes a distorted reality. In cases of labor disputes, where workers often find themselves facing “employers” with incomparably greater financial resources, the issue of legal costs becomes even more critical.
Charging the losing party with the costs of the trial is meant to discourage frivolous legal actions, but in practice, it can have devastating consequences for workers. When a worker loses a case and is charged with the costs of the trial, in particular the costs of the opposite party for its defense in court, they may find themselves in an even more precarious financial situation than before.
This means that even if staff members are in the right, the mere risk of being forced to pay legal costs can deter them from pursuing the case. This leads to an obvious power imbalance in the legal system, where employers with larger financial resources can afford to intimidate workers with threats of legal costs, even when their position is unfounded.
Moreover, this practice is inherently unfair because it puts workers in a position of greater vulnerability. It could mean that a worker who has suffered an injustice in the workplace, such as unjustified dismissal or discrimination, may not be able to assert their rights simply because they cannot afford the financial risk associated with a legal action.
The direct consequence of this situation is that employers (Agency Directors) may feel free to violate workers’ rights, knowing that victims will think twice about seeking justice because of the excessive risks. This creates a vicious cycle in which workers feel powerless in the face of employer abuse, undermining confidence in the legal system and the principles of fairness and justice.
Because this is not about so-called “frivolous” cases that it is right to discourage, but about violations of the Staff Regulations or the Conditions of Employment of Other Servants) against which the complaint (pursuant to art 90.2 of the Staff Regulations) is destined to be rejected in almost all cases, if only because the Authority deciding on the appeal is the same person who adopted or “covered up” the act against which the worker complains.
To reverse this trend, it is necessary to review the rules and practices relating to staff complaints and appeals, providing that:
- the decision on complaints (art. 90.2) be removed from the Agency Directors and entrusted to the Director-General of the “parent D.G.” of the Commission or even better to the Director-General of the D.G. HR always of the Commission.
- Executive and Regulatory Agencies’ Directors should receive policy directives inviting them to conclude Service Level Agreements with the Commission so that the legal defense of the Agencies in court is ensured by the Commission’s own Legal Service : the implications for the workload of the Legal Service and the consequent questions of resources to be allocated to it must be weighed against the fundamental importance of ensuring the right to justice of all staff subject to Staff Regulations or Conditions of Employment of Other Servants (CEOS)
- Agencies’ Directors should also receive policy directives to systematically instruct their lawyers not to ask, in their pleading, that Staff Members, if unsuccessful party, be condemned to pay the legal costs incurred by the Agency (articles 134(1) and 135(1) of the Court’s Rules of Procedure.
Without such an intervention at the political level, Agencies’ staff will be deprived of their basic right to seek justice in their labour disputes.
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, according to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own costs, or even that he or she is not to be ordered to pay any.
[1] The principle that “the right to justice cannot be a privilege reserved for those who can afford to pay exorbitant legal costs” is firmly rooted in international human rights law, which emphasizes the universality, indivisibility, and inalienability of human rights, including access to justice.
- **Universal Declaration of Human Rights (UDHR)**
– **Article 7:** “All are equal before the law and are entitled without any discrimination to equal protection of the law.”
– **Article 10:** “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
- **International Covenant on Civil and Political Rights (ICCPR)**
– **Article 14:** “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
– **Article 26:** “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”
- **European Convention on Human Rights (ECHR)**
– **Article 6:** “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
### Practical Implications and Enforcement
The enforcement of this principle requires robust legal frameworks and effective mechanisms at the national level to ensure that legal aid is available, accessible, and of adequate quality. International bodies, such as the United Nations Human Rights Committee and the European Court of Human Rights, play a crucial role in monitoring compliance with these standards and providing remedies where violations occur.
### Conclusion
The principle that the right to justice cannot be a privilege reserved for those who can afford to pay exorbitant legal costs is well-established in international law. It is grounded in the broader human rights frameworks that underscore equality before the law and the right to a fair trial. States are obligated to ensure that legal aid systems are in place to guarantee that all individuals, regardless of their financial status, have access to justice. This principle is essential for the maintenance of the rule of law and the protection of human rights globally.
Carlo Scano
About the author
Secretary for Organization and Member of the USB Board, Member of the US Federal Committee