Code of Organization and Civil Procedure (Amendment) Order,

L.N. 342 of 2005

EUROPEAN UNION ACT

(CAP. 460)

Code of Organization and Civil Procedure (Amendment) Order,

IN EXERCISE of the powers conferred upon him by article 4 of

the European Union Act, the Prime Minister has, for the purposes

specified in sub-article (2) of the said article, made the following Order>

(1) The title of this Order is the Code of Organization and

Civil Procedure (Amendment) Order, 2005, and the purpose thereof is

the transposition into Maltese Law of the provisions of Directive

2002#8#EC of the Council of the European Union of the 27 th January,

2003. (2) This Order shall come into force on the 18 th October,

2005.

The scope of this Order is to implement the provisions of

Directive 2002#8#EC to provide minimum common rules relating to

legal aid granted to natural persons in cross-border disputes in civil and

commercial matters, whatever the nature of the court or tribunal,

excluding disputes relating to revenue, customs or administrative

matters.

Immediately after Title X of Book Third of the Code of

Organization and Civil Procedure, there shall be added the following

new Title and articles>-

“Title XA

OF LEGAL AID (CROSS-BORDER DISPUTES)

928A. For the purposes of this Title>

“cross-border dispute” means a dispute where the party

applying for legal aid in the context of the Directive is domiciled

or is habitually resident, as determined by Article 59 of Council

Regulation (EC) No. 44 of 2001, in a Member State other than

Malta or where the decision is to be enforced<

“the Directive” means the provisions of Council Directive

2002#8#EC of the 27 th January, 2003 to improve access to justice

in cross-border disputes by establishing minimum common rules

relating to legal aid for such disputes<

“Member State” means any State referred to in the definition

“the Treaty” contained in article 2 (1) of the Act, excluding

Denmark.

928B. (1) Legal aid shall be granted to the applicants involved Right to legal aid.

in a cross-border dispute who are, partially or totally, unable to meet

the costs of the proceedings as a result of their economic situation.

(2) Applicants who have received legal aid in a Member

State other than Malta in respect of proceedings before a court in that

other Member State shall be entitled to receive legal aid in Malta if

recognition or enforcement of the judgement is sought in Malta.

(3) Legal aid applies to>

(a) pre-litigation advice with the aim of reaching a settlement

prior to instituting legal proceedings<

(b) legal assistance and representation in court, even at the

appeal stage, with or without the cost of proceedings of the

recipient<

(c) the costs of the opposing party had the recipient lost the

case and would be so obliged to pay such costs if he were domiciled

or habitually resident in the Member State in which the court is

sitting<

(d) the enforcement of authentic instruments in another

Member State.

(e) extrajudicial procedures under the conditions defined

in the Directive if there is a legal requirement for the parties to use

them or if the parties to the dispute are ordered by the court to

have recourse to them.

(4) Legal aid shall be granted or refused by the competent

authority when the Court is sitting in Malta and by the competent

authority of the Member State other than Malta when the Court is sitting

outside Malta.

(5) Without prejudice to sub-article (4) of this article, legal

aid applicants may not be prevented from legal aid if they prove that

they are unable to pay the cost of the proceedings as a result of differences

in the cost of living between the Member State of domicile or habitual

residence and of the forum.

928C. For the purposes of the Directive, the competent authority

in Malta is the Advocate for Legal Aid as defined in sub-article (6) of

article 911 of the Code.

928D. It shall be the duty of the competent authority>

(a) to act as a receiving or transmitting authority for legal

aid applications<

(b) to assist the applicant in ensuring that the application is

accompanied by all the supporting documents known by such

applicant to be required to enable the application to be determined<

(c) as a transmitting authority, to assist the applicant in

providing the translation of the application and of the necessary

supporting documents when the application is submitted to the

authorities in another Member State<

(d) as a receiving authority, to assess the economic situation

of a person in the light of the provisions of article 912 of the Code,

including the amount of the resources of persons who are financially

dependent on the applicant<

(e)

to grant or refuse legal aid<

(f) to consider, when taking a decision on the merits of an

application and without prejudice to paragraph (d) of this article,

the importance of the individual case to the applicant, and may

also take into account the nature of the case when the applicant is

claiming damage to his or her reputation but has suffered no

material or financial loss, or when the application concerns a claim

arising directly out of the applicant’s trade or self-employed

profession<

(g) to keep the applicant informed with the processing of

the application, and where the application is totally or partially

rejected, to give reasons for the rejection<

(h) to decide whether recipients of legal aid must refund in

whole or in part the assistance granted if their financial situation

has substantially improved or if the decision to grant legal aid had

been taken on the basis of inaccurate information given by the

recipient and to collect any reimbursement so due.

928E. (1) Legal aid applications by persons who are domiciled Procedure.

or habitually resident in Malta may be submitted either>

(a) to the competent authority in Malta hereinafter referred

to as “the transmitting authority”< or

(b) to the competent authority of the Member State in which

the court is sitting or where the decision is to be enforced,

hereinafter referred to as “the receiving authority”.

(2) Legal aid applications shall be completed in accordance

with such forms as may be prescribed by the Minister responsible for

justice by Order in the Gazzette.

(3) The competent authority in Malta may decide to refuse

to transmit an application to the receiving authority of another Member

State if it is manifestly>

(a)

unfounded< or

(b) outside the scope of the Directive.

When an application for transmission is totally or partially rejected,

the reasons for rejection shall be given, and the provisions of article

917 of the Code shall apply.

(4) Without prejudice to sub-article (3), when the competent

authority in Malta receives a request for legal aid in relation to

proceedings which are being heard before a court in a Member State

other than Malta, it shall transmit the application to the competent

receiving authority in the other Member State within fifteen days of the

receipt of the application duly completed in one of the languages of the

Member State of the competent receiving authority, and the supporting

documents translated, where necessary, into one of those languages.

(5) Applicants for legal aid shall be fully informed of the

processing of the application.

(6) Where the competent authority in Malta refuses to grant

legal aid, it shall inform the applicant of the reasons for rejection, and

the provisions of article 917 of the Code shall apply.

928F. (1) Legal aid granted by the competent authority in Malta Costs.

when it is acting as a receiving authority shall cover the following costs>

(a) interpretation<

(b) translation of documents required by the court or by the

competent authority and presented to the recipient, which are

necessary for the resolution of the case<

(c) travel costs to be borne by the applicant where the

physical presence of the persons concerned with the presentation

of the applicant’s case is required in court, and the court is satisfied

that the persons concerned cannot be heard to the satisfaction of

the court by any other means.

(2) Legal aid granted by the competent authority in Malta

when it is acting as a transmitting authority shall cover the following

costs>

(a) costs relating to the assistance of a local lawyer or another

person entitled to give legal advice, incurred by the competent

authority until the application for legal aid has been received in

the Member State where the court is sitting<

(b) the translation of the application and of the necessary

supporting documents when the application is submitted to the

authorities of that Member State where the court is sitting.

928G. Costs related to the translation of the application and

supporting documents incurred by the competent authority following

an application for legal aid by a person domiciled or habitually resident

in Malta shall be repaid to the competent authority if the application is

rejected by the competent authority of the Member State other than

Malta where the Court is sitting.

928H. Documents transmitted by the competent authority shall

be exempt from legislation or other similar formality.”.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press