April 2012

European Sales (Contract) law - lawyers call for time out
As a result of strong lobbying by the Bar among others, the Council of the Bars and Law Societies of Europe (CCBE) has adopted a short resolution on the October 2011 proposal for a Common European Sales Law, calling on the EU institutions to revisit as a matter of priority the issues of legal basis, proportionality and the interaction with the Rome I regulation, and to pause other negotiations on the file pending that. The Bar's own preliminary position paper on legal basis is linked to the CCBE paper. See: http://bit.ly/zofvFQ.

The Ministry of Justice is consulting the public about the proposal, deadline for responses 21 May 2012. The Bar will respond. See: http://bit.ly/wzZUS9.

Cross-border successions - it looks like the UK remains outside
In March, the European Parliament's Legal Affairs Committee adopted a text, agreed with the Council, on the October 2009 proposal for a regulation on the private international law rules applicable to cross-border Successions and the creation of a European Certificate of Inheritance (Procedure reference COD(2009)0157). Unfortunately, and despite considerable efforts by many to find a solution, no provisions on clawback that would allow the UK to opt-in were included. Accordingly, at the time of writing, it seems that the UK will remain outside its reach.

Brussels I regulation review - summer agreement expected
The EP and Council believe themselves to be on course for July agreement on the text of the December 2010 proposal for a recast regulation 44/2001 on recognition and enforcement of judgments in civil and commercial matters, into which the UK and Eire have opted. (Procedure reference COD(2010)0383).

EP calling for extension of Rome II regulation to apply to rights of the personality
In April, the European Parliament should adopt an own initiative report calling on the Commission to amend Regulation 864/2007 on the law applicable to non-contractual
obligations (procedure reference INI (2009)2170), so as to extend its application to
violations of privacy and rights relating to the personality. For the draft report, see:
http://bit.ly/yBk3xW.

Family Law - New Hague Conference discussions on Child Abduction
The Hague Conference is responsible for the creation and promotion of international conventions to resolve problems in Private International Law. Every five years, the Hague Conference holds Special Commission meetings on the operation of its 1980 & 1996 Conventions in the field of international family law, the most recent of these having closed at the end of January 2012. Detailed results of the discussions are available at: http://bit.ly/wNdhY4.

European Order for Payment Procedure - Practice Guide available
The Commission has recently made available on its website a new practice guide on the application of Regulation 1896/2006 - the European Order for Payment procedure. The guide is available in 21 EU languages on the DG Justice website at: http://bit.ly/xydJrY.

Similar guides are in the works for the complementary EU Small Claims procedure
(Regulation 861/2007), one for lawyers and one for citizens. Once launched, they too will be accessible via the same link.

House of Lords EU Scrutiny Committee Evidence: EU criminal procedure
The House of Lords has recently published the evidence it received in response to its late 2011 inquiry on EU criminal Procedural law, including evidence provided by the Bar. See: http://bit.ly/xjnSGK.

Safeguards for suspects and defendants in criminal proceedings
The Council, under the Swedish Presidency in late 2009, adopted a "Roadmap of six defence measures" to be proposed by the Commission. These were rights to:

A. translation and interpretation
B. information about rights and about the charges
C. legal Aid and legal advice / assistance
D. communication with relatives, employers and consular authorities
E. special safeguards for vulnerable persons,
and
F. a green paper on the right to review the grounds for detention.

Measure A has entered into force. See: http://bit.ly/y84LbF.

Measure B (Procedure reference COD(2010)0215) should have been formally adopted in Council by the time of reading.

Measure C1/D - Both the Council and the EP are working hard on this difficult June 2011 proposal on the right of access to a lawyer (Procedure reference COD(2011)0154. The draft EP report, which will have been amended and may have been adopted by the time of reading, can be seen at: http://bit.ly/zeKlMb.

As to the remaining measures C2, E and F, note again that the Commission plans to adopt a proposal for Measure E during 2012; whereas Measure C2 - Legal Aid in criminal proceedings, has been postponed, probably to 2014; along with the planned Green Paper on pre-trail detention.

Exchange of criminal evidence - European Investigation Order
Negotiations are progressing on the proposed European Investigation Order (EIO) in criminal matters (Procedure Reference COD(2010) 0817), designed to create a single regime for the collection of evidence in another Member State. The EP is calling for a range of safeguards, including of rights, to balance the prosecutorial nature of the main proposal. See: http://bit.ly/zU7I60.

European Protection Order in force
The new directive, designed to extend the geographical reach of national protection measures such as injunctions when the applicant moves to another Member State, has entered into force. Member States have three years to transpose it into national law. http://bit.ly/wY0klZ.

Combating the Sexual abuse and exploitation of children
The new directive on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA (COD(2010)064), has entered into force. Member States have two years to implement it. http://bit.ly/wnBbiP.

Major reform of the EU Data protection rules
At the end of January, the Commission adopted an important, comprehensive package of measures intended to reinforce, but also to streamline and administratively simplify, the EU's data protection rules, for the benefit of both data holders and of individuals. See link to all relevant documents: http://bit.ly/w2eWrz.

Proposed new EU public procurement rules may be problematic for the Bar
At the end of last year, the Commission adopted a package of reform proposals in the field of EU public procurement. As well as having an impact on PP as an area of practice, the proposal also raises significant issues in the context of tendering for legal aid work. Among other actions it is taking, the Bar has alerted other legal professions in the EU to the issue, and we will cooperate in lobbying efforts going forward. See: http://bit.ly/yWi6tA and http://bit.ly/zzyx5o.

ADR and ODR for Business to Consumer, and possibly B2B disputes too Work continues, though not without controversy, on the recent proposals for a Directive on consumer ADR (Procedure reference COD (2011)0373) and for a Regulation on consumer ODR COD (2011)0374) - establishing an online platform for resolving consumer disputes arising from a cross-border e-commerce transaction.

The Commission's DG Justice is also looking at ADR in the context of B2B disputes, though it claims to be at a very preliminary stage in its thinking.

Commission consultation on the future of EU Company Law
In late February, the Commission launched this rather broad, questionnaire-based, consultation, with a response deadline of 14 May 2012. Relevant Bar bodies were informed. http://bit.ly/zWdGoo.

Capital Requirements Directive IV - any relief for mortgage borrowers?
Late April should see the climax of considerable lobbying activities in the EP on the July 2011 Commission proposals, for a directive (COD(2011)0203) and a regulation (COD(2011)0202), updating EU rules on Capital Requirements (in the banking sector). The proposals are part of a large reform package that seeks to make banks safer and regulation more uniform. From a UK point of view, a key issue is the new requirement that EU loans be treated as if they were in default when they are 90 days in arrears, halving the current period of grace given to UK retail mortgage borrowers.

Credit agreements relating to residential property
The European Parliament has been examining the March 2011 Commission proposal for a directive intended to create a competitive pan-European market in residential mortgages (Procedure reference 2011COD0062). The draft ECON report is expected to be adopted in committee at the end of April, and by the EP in Plenary in early September. See: http://bit.ly/xVpaiq.

Inter-connection of central, commercial and company registers
The European Parliament has approved the Commission's February 2011 proposal for a directive (Procedure reference: 2011/0038(COD) on the interconnection of national and regional company registers so as to simplify and regulate the exchange of information between them. For the EP text, see: http://bit.ly/yfSo8w.

Commission Consultation on regional state aid
The Commission is consulting on its planned revision of the state aid rules applicable to regional development aid, to apply from 2014 onwards. The deadline for responses is 26 April 2012. All relevant documents can be seen at http://bit.ly/AAGOne.