August 2013

HMG's Balance of Competences Review 2013 - 2014
The Government is conducting a two year long, detailed review of who does what between the EU and the UK , which should result in a set of open-ended reports across the subject areas. The current list and sequencing of reports is provided in a table on the FCO website.

On 16 May, the Government published a series of second semester calls for evidence, with submission deadlines in early August. Several touch on matters relating to our practice areas, amongst which three merit particular examination and probable response by the Bar:

  • Civil justice
  • Internal Market: free movement of goods, and
  • Internal Market: free movement of persons.

Justice for Growth - the Justice Scoreboard
Earlier this year, the European Commission published the first Justice Scoreboard, which examines the justice systems across the Member States and seeks to identify the parameters that make for an effective justice system. As part of its "Justice for Growth" strategy, the EU institutions will be looking not only at how to maximise the effectiveness of national systems in the coming years, but also at what else needs to be done in the JHA field at EU level.

EP reviewing the implementation of the Stockholm Programme
The European Parliament (EP) is conducting an own-initiative review of the implementation of the 2009 Stockholm Programme, which defined the ambitions for the EU in the area of Justice and Home Affairs (JHA) for the five years to end 2014.

The aim is for adoption of a resolution in the autumn. The JURI and LIBE committees in the EP also hosted an inter-parliamentary hearing on the topic in late June.

Collective Redress - Commission recommends a horizontal approach
The Commission has adopted a package of proposals for non-binding measures to set common standards for collective redress mechanisms in the Member States. 

Property consequences of divorce and registered partnerships
In March 2011, the Commission adopted two related proposals, on the jurisdictional and PIL rules relating to the property consequences of divorce and registered partnerships (Procedure references: CNS2011/0059 & 60) respectively. The EP is pushing for changes to the proposals so that registered partnerships enjoy the same PIL rules as regards property disputes, as married couples.

Brussels I revised - change its application to employment law?
The EP is suggesting a revision of the newly revised Brussels I Regulation (EU) No. 1215/2012, to change the rules on jurisdiction and applicable law in employment cases. See the draft report.

Free movement of public documents in the EU
The Commission has adopted a proposal to remove administrative obstacles to the crossborder recognition of public documents, such as birth, marriage and adoption certificates, as well as documents proving the legal status and the registration of companies etc. (Procedure reference COD(2013)0119).

Commission Small Claims consultation
The European Commission conducted a public consultation on the functioning of the European Small Claims procedure, set up by regulation EC 861/2007.

The Bar responded, calling for more training and raising of public awareness of the procedure, and expressing itself to be open to a rise in the threshold. The Bar's short response can be seen here.

Review of legal aid in cross-border civil and commercial matters
The EP has formally called for greater efforts to improve awareness of the Legal Aid Directive of 2003 and for cooperation between the Member States to maximise its uptake.

We now wait to see what the Commission does with the EP's recommendations.

Measure C - Right of Access to a lawyer
I am delighted to confirm, for anyone who has not already seen the coverage, that agreement has at last been reached between the EU institutions on the proposed directive on the right of access to a lawyer in criminal proceedings. The directive, as informally agreed, sets out minimum rules on the right of access to a lawyer, on the right to have a third party informed upon deprivation of liberty, and on the right to communicate, while deprived of liberty, with third persons and with consular authorities. Many of its key features are hard-won, and follow lengthy and intense lobbying by the legal profession, including the Bar, notably represented by the ECBA and the CCBE, and other NGOs such as JUSTICE. See: http://bit.ly/14AzKNa

Anticipating Measure C2 - Right to legal aid
The next step forward on the EU roadmap of defence rights should be taken this autumn when the Commission is expected to adopt a proposal on legal aid in criminal cases. Ahead of that, it is worth reading material that is being generated in anticipation thereof, including the European Criminal Bar Association (ECBA)'s latest edition of ECBA Touchstones, entitled "Minimum Standards for the right to Legal Aid (Measure C part 2)". See: http://bit.ly/16EOJXR

European Public Prosecutor's office - proposed creation is imminent
By the time of reading, the Commission should have adopted its proposal for a regulation creating the European Public Prosecutor's office. It is expected to be far-reaching in its ambition for the Office, giving it exclusive jurisdiction to investigate and prosecute any offence which falls within its competence, but with sole discretion to cede this to competent national authorities in certain circumstances. Watch this space!

Protocol 36 to the Lisbon Treaty - the 2014 Opt-out - update
The House of Lords has been continuing to focus attention on the debate around the decision that must be taken by the Government before 1 June 2014, as to whether or not the UK will opt-out of a block of approximately 130 pre-Lisbon Treaty EU criminal justice measures; and if it does, whether and how it could opt back into some of them. Following on from its April report opposing the exercise of the opt-out, in June the Lords hosted a seminar-debate on the subject. The Bar has actively contributed at each stage of its work. See: http://bit.ly/14sXBjm.

EU Data Protection Review
The Council has agreed a text, which is to form its negotiating position in its dealings with the EP over the coming months on the revision to the EU data protection rules. See: http://bit.ly/11IbLgH.

New Agenda for European Consumer Policy
On 11 June, the EP adopted an own-initiative resolution setting out its ideas on a new agenda for European Consumer Policy. See: http://bit.ly/13dTHN4.

Antitrust damages: Commission proposes legislation - at last?
The Commission has adopted a proposal for a Directive to facilitate damages claims by victims of antitrust violations, across the EU. See: http://bit.ly/4rgLdJ.

In parallel, the Commission has also produced two non-binding guides:

and

Towards more effective EU merger control
The Commission is conducting a consultation on possible improvements to the EU Merger Regulation (Regulation (EC) No 139/2004) on the control of concentrations between undertakings, OJ L 24, 29.1.2004. The deadline for responses is 12 September 2013. See: http://bit.ly/12fw8gt.

Progress on modernising the EU's public procurement rules
At the time of writing, informal agreement has been reached on the important revision of the EU public procurement rules, confirming changes which the Bar supported, providing for flexibility in the market for legal services, including the domestic market. This allows, for example, the Ministry of Justice, as it did in the spring, not to require tendering for Crown Court advocacy. For relevant documents, go to: http://bit.ly/WNZJQH.

Note that on 26 June, the Commission adopted a proposal for a directive on e-invoicing in public procurement. See: http://bit.ly/12jxDi5.

Professional Qualifications Directive
Institutional agreement has been achieved on the use of an EU professional card to prove qualification, and related measures. The agreed text can be seen at: http://bit.ly/17NnFH9. All file information is available at: http://bit.ly/VbY56W and http://bit.ly/1cva4V2.

OECD report "What makes Civil Justice effective?"
The OECD has published a report on the Civil Justice systems in its member states, examining the effect that factors such as trial length, judicial performance, litigation costs and appeal rates have on the effectiveness of their systems, and making recommendations thereon. See: http://bit.ly/152KOFg.

Access to justice in environmental matters
The Commission is conducting a public consultation, designed to:

  • Assess whether legislative action at EU level would have added value in ensuring effective and non-discriminatory access to justice in environmental matters across the EU Member States (subsidiary test), and

  • Identify those issues where targeted EU legislative action would be needed to fulfil the objective of ensuring access to national courts in environmental matters (proportionality test). The deadline for responses is 23 September. See: http://bit.ly/19OIzGH.