April 2013

HMG's Balance of Competences Review 2013 - 2014
The Bar's EU Law Committee will coordinate any positions taken by the Bar over the next two years of activity on the government's detailed review of who does what as between the EU and the UK. At the start of each of the four semesters, government departments will launch calls for evidence setting out the scope of their work and requesting input. At the end of each semester, heir open-ended reports will be published online. The current list and sequencing of reports is provided in a table on the FCO website.

By the time of reading, the Bar will likely have submitted a narrow response to the first synoptic review of the Internal Market, and be considering responses to the separate calls on the free movement of goods, people, and in the area of civil justice.

Common European Sales Law (contract) - work continues
The Bar has been actively engaged in the more than decade-long EU debate on this file, which led to the adoption in October 2012 of the Commission's proposal for a regulation creating the Common European Sales Law ("CESL", Procedure reference COD(2011)0284) an optional instrument to be used for cross-border B2C sales, and B2B ones involving at least one SME. On 21 February, the main European Parliament committee on the file issued its draft report, which seeks to limit the scope of the instrument to internet and distance sales in the first instance. http://bit.ly/ZWl6y0.

There will be much debate on the file before the EP votes on the report, possibly in the last quarter of this year. The Council is unlikely to have made much progress in that time.

Commission has started working on European Insurance contract law
In January, the Commission adopted a decision on the setting up of an Expert Group on European Insurance Contract Law, which will explore whether a specific EU instrument is needed in that field: http://bit.ly/VuyGtu.

The Commission Decision was swiftly followed by a call for applications to join the expert group. A member of the Bar has applied, as have other UK practitioners and the Council of the Bars and Law Societies of Europe (CCBE). One way or the other therefore, we hope and intend to input our views into what could be an important exercise.

Final steps towards ADR and ODR for B2C disputes
By the time of reading, the Council may have formally adopted the two measures that together will make available, throughout the EU, alternative means of dispute resolution (including online - hence the "o" in ODR) for contractual disputes between consumers and traders, arising from the sale of goods or the provision of services. Once formally adopted, the Alternative Dispute Resolution directive and the Online Dispute Resolution regulation will enter into force within a few weeks, and Member States will then have 24 months to implement the directive. For more details, go to: http://bit.ly/VKd1d0.

European AcCount Preservation Order moving in the right direction
Both the Council and the Parliament seem to be working towards an acceptable outcome for the 2011 Commission proposal, for a regulation creating a European Account Preservation Order (EAPO) (COD(2011)0204). The proposed regulation aims to facilitate cross-border debt recovery in civil and commercial matters, by creating a uniform European procedure leading to the issue of a European Account Preservation order. Both institutions are seeking to create a better balance between the interests of the debtor and those of the creditor, by inter alia, tightening up both the conditions required for the granting of the order, and the evidence required in support of it. See the draft EP report at: http://bit.ly/WDBalM.

Mutual recognition of protection measures in civil matters - agreement
Restraining orders granted in national courts should soon enjoy automatic recognition and enforcement throughout the EU. In February, the EP and the Council reached a political agreement on the Commission's 2011 proposal for a regulation creating an EU-wide protection order, meaning that victims of domestic violence (usually, but not always, women) will soon be able to rely on a restraining order obtained in their home country, wherever they are in the EU. See: http://bit.ly/163iG4U.

This is part of a package of measures to ensure a minimum level of rights, support and protection for victims across the EU. The other legislative measure contained in it was the Directive on Minimum Standards (formally adopted in October 2012 see OJ L315 of 14 November 2012 at: http://bit.ly/TMs8Cu.

As you know, a complementary measure exists on the criminal justice side, in the form of the directive creating the European Protection Order in criminal matters see: http://bit.ly/y7QDcA.

Review of directive on Legal Aid in civil matters
As part of a review of the operation of this crossborder civil legal aid directive, adopted in 2003, the European Parliament is likely to call on the Commission to raise its profile and that of other existing EU civil justice procedural measures; make them more-user-friendly, and thus promote their greater uptake. They may also call for lists of legal aid lawyers to be held centrally by Member States. See: http://bit.ly/12ovtA3.

Protocol 36 to the Lisbon Treaty - the 2014 Opt-out - update
The last Brussels Report in the February issue of Counsel informed you of the Bar's written evidence to the House of Lords inquiry on whether or not the UK should opt-out of a block of pre-Lisbon Treaty criminal justice measures; and if it does, whether and how it could opt back into some of them. Since then, we have given oral evidence, both in London and Brussels, and submitted further supplementary written evidence. The Bar has thus strived to add its voice to the chorus calling on the government not to exercise the opt-out. See: http://bit.ly/Zx8KPR I commend a paper on the wider implications of the opt-out, published in late January by the Centre for European Reform: http://bit.ly/Y8GVaw.

Legal Profession unconvinced of need for European Public Prosecutor's office
By the summer, we can expect to see a Commission proposal for the creation of a European Public Prosecutor's office. In anticipation of that, the Council of the Bars and Law Societies of Europe (CCBE) of which the Bar and other members of the UK legal profession are members, has submitted a paper (to which we contributed) to the EU institutions, calling into question the need for the EPPO and urging instead a better use of existing means of fighting EU fraud. It also recognizes the political reality that a proposal will surely emerge, in making several submissions relating to scope and activities, and to important principles such as the rights of the defence and of victims. For the CCBE paper, see: http://bit.ly/XlhoiI.

The principle of double jeopardy in EU law interpreted by the CJEU
Article 50 of the EU Charter of Fundamental Rights, which sets out the principle of double jeopardy as it now applies in the EU, has been interpreted by the Court of Justice of the EU as not saying that a Member State cannot impose, for identical acts of tax evasion, a tax penalty and a criminal penalty; though it made it plain that this was so provided that the tax penalty is not criminal in nature. The judgment, in case C-617/10, can be seen at: http://bit.ly/WGdqmE.

European Arrest warrant - trial in absentia
In late February the Court of Justice of the EU issued judgment in Case C-399/1, Stefano Melloni v Ministerio fiscal, in which it held that the surrender of a person to the judicial authorities of another Member State pursuant to a European arrest warrant cannot be made subject to the possibility of judicial review of the conviction handed down in absentia. See: http://bit.ly/13G1PFV.

EU Data Protection Review - MEPs table amendments galore
The European Parliament is battling its way through over 3000 amendments tabled by its members to its draft report on the Commission's January 2012 package of measures reforming and updating the EU's data protection rules. See the draft report (regulation) at: http://bit.ly/VZIzhP and directive at: http://bit.ly/Y8HhOe.

It is likely to take months to reach agreement within the EP itself, and in the meantime, the Bar's own expert group is closely following developments, and inputting where necessary, on various aspects of the proposals.

Final steps towards the EU Patent Package
After more than 30 years of discussion, the final piece of the jigsaw that is the EU Patent Package has fallen into place. January saw the entry into force of two of the packages' three related instruments: the Regulation creating a unitary patent (1257/2012), published in the Official Journal of L361 of 31 December 2012: http://bit.ly/UILY3y and the regulation defining the applicable language regime (1260/2012): http://bit.ly/Wol3XO.

Since then, the international agreement for establishing the Unitary Patent Court (UPC) was signed in Brussels. See the text of the agreement at: http://bit.ly/W5k7s2.

Following the signing of the agreement, the ratification process by national parliaments can start. At least 13 of the 25 signatory Member States (so not Italy and Spain) will have to ratify the agreement for it to enter into force. If the implementing decisions are taken in a timely manner, the first European patent with unitary effect could be granted in 2014.

EU consultation on the protection of non-patentable trade secrets
In early 2013, the Commission conducted an online consultation on how to go about protecting valuable business data in the Internal Market that is not patentable, such as incremental technological improvements, or marketing data The Intellectual Bar Association (IPBA) decided not to reply formally to the consultation, as it was largely directed at business users, but instead submitted a short informal paper pointing out some of the potential legal issues that could arise were the Commission to pursue the idea of creating such protection. See: http://bit.ly/13G1SBJ.

EU consultation on civil enforcement of IP rights in the Member States
By the time of reading, the Bar is likely to have responded to the Commission's latest online public consultation in the area of IP rights, this time on the adequacy of the civil enforcement mechanisms available in the Member States. For all details see: http://bit.ly/15tlgjw.

Fourth anti-money-laundering directive proposal
The long awaited Commission proposal for a fourth directive preventing the use of the financial system for money-laundering and terrorist financing (4AML) emerged on 5 February. Initial assessments indicate that the scope of activities undertaken by legal professionals that are within the 4th Directive and the protection of legal professional privilege have not changed. However, there are important changes in the detail, on which the collective legal profession will be keeping a close watch over the coming months. See: http://bit.ly/XVCl04.

EP progress on modernising the EU's public procurement rules
The Bar has been following this important revision of the EU public procurement rules since the 2011 adoption of the package of proposals the key EP committee's adopted report on the main proposal can be viewed at: http://bit.ly/WGfwD5.

The report's guiding principle is that public procurement contracts should go to the "most economically advantageous tender", assessed on environmental or social criteria. On the key issue of the directive's application to legal services, Article 10 does exclude certain categories from scope, and a light touch regime will apply in certain areas. The report is expected to go the Plenary for adoption in September.

Court of Justice of the EU - updated electronic lodging system
For those of you who are not yet aware, but need to be, on 18 February the Court of Justice brought out a new version of its electronic lodging system "e-Curia", which contains a number of improvements, largely based on suggestions from users. A summary of the main changes can be found on the Court's website, at: http://bit.ly/WQeog4.

The Court is encouraging the increased use of the e-Curia system, and hopes that this innovation will contribute to that.

House of Lords follow-up inquiry on the workload of the CJEU
In February, the House of Lords' EU Sub-Committee on Justice, Institutions and Consumer Protection conducted a very short follow-up inquiry into the workload of the Court of Justice of the European Union (CJEU). It will be interesting to see what comes of it, not least because there is some overlap with the issues raised in the Opt-out 2014 inquiry, discussed above. See: http://bit.ly/WGgajI.

A little help with "How to litigate before the CJEU"
The CCBE and the Academy of European Law in Trier are co-organising a conference from 13 to 15 May in Trier, descriptively entitled "How to litigate before the CJEU". Hugh Mercer QC of Essex Court Chambers is among the speakers. All the conference documentation can be found at: http://bit.ly/13BTMKn.

The Programme is at: https://www.era.int/upload/dokumente/14444.pdf.

Interaction between EU law and international law - BEG conference
The Bar European Group Annual Conference will take place in Croatia on 26 and 27 May 2013. The conference theme is the interaction between EU and international law focussing on individual aspects of cross-border practice. Given the location, the imminent accession of Croatia to the EU will also be on the agenda. For more details, go to BEG's website, at: http://www.bareuropeangroup.org.uk/.