August 2012

House of Commons Scrutiny inquiry into its EU scrutiny system
The House of Commons Scrutiny Committee is conducting a rather searching inquiry into its own EU scrutiny system - its purpose, structure, composition, expectations, etc. The deadline for written submissions was 18 July, but the Committee will be seeking oral evidence during the autumn. For all relevant documentation, go to: http://bit.ly/LirxEd.

Implementation of the Services Directive - follow-up
The Commission is moving to close the gaps in the implementation of the Services Directive of 2006. It recently published a communication entitled "A partnership for new growth in services 2012-2015" which, amongst other things, shows that implementation of the Services Directive (2006/123EC) must be improved. The Commission is calling on Member States to eliminate discriminatory regulations which still exist in some countries, and forewarns  that it will be working to bring about "deep structural reforms" in the areas where  Member States decided previously to keep the status quo. The legal profession is not  directly in the frame, but may nonetheless be affected by these future developments. See: http://bit.ly/LCWEKg.

Consultation on the transparency register
On 8 June, the Commission published a consultation, deadline 31 August, on the operation of its "voluntary" Transparency Register for Interest Representatives who lobby in Brussels. The Bar Council, like other national bars and law societies, is on the register. The consultation is likely to provoke some debate. See: http://bit.ly/NmPaiR.

Consultation on the future European Insolvency Law
The Bar has responded to the Commission's public consultation on modernising EU rules governing insolvencies, currently laid down in Regulation 1346/200. Our response indicates general satisfaction with the current regime, but suggests some areas where improvements could be introduced through the planned revision. See: http://bit.ly/HqrJRG.

Common European Sales Law (contract)
Readers will know of the decade-long debate on this file, leading to the adoption in October last year of the Commission proposal for a regulation creating the Common European Sales Law. Latest developments are as follows:

  • the Bar responded to the MoJ / BIS call for evidence on the Commission's proposal, setting out our concerns, and we also highlighted these to national delegations in the Council
  • the JHA Council debated the file on 8 June and, whilst still unable to agree on several fundamental issues, nonetheless called for analysis and negotiations of the detail of the proposal to begin, and
  • the European Parliament is examining the proposal, seeking expert input on its contents, and will draft its report at the end of this year.

Limitation periods in road traffic accidents - Commission consultation?
By the time this goes to press, the Commission is expected to have launched this long-anticipated public consultation, to which the Personal Injury Bar Association will be responding.

Regulation on cross-border successions adopted in June
The JHA Council, meeting in early June, formally adopted the new regulation on the
private international law rules applicable to cross-border Successions; and the creation
of a European Certificate of Inheritance. The text, which does not cover the UK, can be
seen at: http://bit.ly/MQVVpn.

Brussels I regulation review update
In June, the Council agreed a general approach on this Commission proposal dated 14 December 2010, 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). Lobbying continues, however, in an effort to include one or two further key amendments in the text, to be formally adopted by the EP and Council in the autumn.

Proposed ADR and ODR for business to consumer disputes
The Council has reached a general approach on two legislative proposals, for a Directive
on consumer ADR and for a Regulation on consumer Online DR. These schemes will be
available for contractual disputes between consumers and traders, arising from the sale of goods or the provision of services, whether the consumer or the trader makes the complaint. See: http://bit.ly/N5ndqI. The EP Plenary is expected to adopt the proposals in October.

EU strategy to combat human trafficking 2012-16
In June, the Commission unveiled a major new strategy to combat the trafficking of humans, including measures aimed at its prevention, protection and support of the victims and prosecution of the traffickers. These measures are intended to complement Directive 2011/36 EU, which is due to be implemented into Member States' law by next April. For more details and relevant links, see: http://bit.ly/LJyl2k.

Protecting the EU's financial interests and the European Public Prosecutor
By the time this goes to press, the Commission is expected to have issued a proposal setting out its future plans for the protection of the EU's financial interests, which will be the responsibility of the new post of the European Public Prosecutor EPP).

Freezing and confiscation of the proceeds of crime
In March, the Commission presented a proposal for a directive (Procedure reference
COD(2012)0036), which will simplify and streamline procedures to trace and seize the
proceeds of serious and organised crime (defined). Despite the House of Lords urging
the UK to opt-in, in June the Government announced its decision to the contrary. See:
http://bit.ly/KieIKI.

Safeguards for suspects and defendants in criminal proceedings
Measure B - the Directive on the right to information in criminal proceedings,
including the letter of rights, was formally published in the Official Journal of the EU on 1 June. Member States have until 2 June 2014 to fully implement the directive, which has already entered into force. The Annex to the text sets out an indicative model of the
letter of rights. See: http://bit.ly/L1ET9r.

Measure C1 /D- access to a lawyer In June, the Council agreed its own text of this important proposal, giving the right of access to a lawyer for suspects and defendants. Lawyers are particularly alarmed by the Council's undermining of client confidentiality and its attempts to narrow the scope, so as to apply the right only to those suspected of having committed offences carrying a possible custodial sentence. At the time of writing, the pressure is on the EP to rebalance the text. All will be clearer in the autumn.

Measure C2 - The Commission has recently reaffirmed its intention to present a draft legal instrument on legal aid in 2013, in line with the Council's Roadmap.

Unified Patent Court - House of Commons Committee's scathing report
At the end of June, the European Council announced a breakthrough agreement, whereby the central seat of the Central Division of the Unified Patent court will be in Paris, but with two specialised divisions, one in London (covering, significantly, pharmaceuticals) and the other in Munich, covering mechanical engineering. The co-located Court will be empowered to give a single judgement under a single court system that will apply in the 25 EU member states that are signed up to the deal. Remaining issues should have been agreed with the EP by the time of reading, but after more than 30 years of wrangling, which might yet be optimistic.

The future of EU company law
The Commission has announced plans to issue an Action Plan on the future of EU company law in the early autumn. In June, the EP adopted a resolution setting out what it would like to see achieved in this area. See: http://bit.ly/KhItJg.