Brussels News January 2010

Lisbon Treaty in Force
The Lisbon Treaty, signed by the Heads of State and Government in December 2007, entered into force on 1 December 2009. The term "Lisbon Treaty" is shorthand for two new treaties

  • The Treaty on the Functioning of the European Union" ("TFEU") which amends and replaces the old Treaty establishing the European Community ("TEC"); and
  • The Treaty on European Union ("TEU"), containing only the provisions on Common Foreign and Security Policy, which remains intergovernmental.

To view a consolidated version of the Lisbon Treaty, go to the Eur-Lex website:

A quick selection of the many useful guides available on the changes imposed by the entry into force of the new Treaty:

Ensuring that the Treaty "beds down" well and quickly is the stated priority of the Spanish Presidency of the EU, which took over from Sweden on 1 January. That, and steering the EU towards economic recovery.

Stockholm Programme Adopted
At the end of 2009 the European Council adopted the Stockholm Programme, the EU's 5-year Justice Liberty and Security work programme, to run from 2010 to 2014.

The Commission will issue a detailed implementing Action Plan by mid-2010.

Services Directive in Force
The Services Framework Directive ("the SFD") (2006/123 EC), which aims to simplify and enhance the cross-border provision of services within the EU, for the benefit of both the consumer and the service provider, entered into force on 28 December 2009. As regards its application to the legal profession, successful lobbying by the Bar and other representatives of the profession during its EU legislative passage, ensured that the directive is complementary, but without prejudice, to the existing lawyers regime, i.e. the Lawyers' Services Directive (77/249/EEC and the Lawyers' Establishment Directive  (98/5/EC). Accordingly, the SFD imposes some simplification of the administrative procedures and is intended to improve the accessibility,  quality and quantity of information available, both to providers and users of legal services, but should not otherwise interfere with the existing regime. The SFD has been implemented into UK law by the Provision of Services Regulations 2009.

Proposal for a Regulation on Conflicts Rules In Succession
By the time of reading, the UK will have informed the EU institutions regarding its decision on whether or not to opt-in to the October 2009 Commission proposal for a regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession, and the creation of a European Certificate of Succession (Procedure reference COD(2009)0157. The Bar, and other branches of the UK legal profession recommended that it should not opt-in at this stage. The proposal as adopted has some good ideas, but there remain two primary areas of concern, being clawback and the current provisions on jurisdiction and certificates of succession. The proposal is available at here.

Note that the Academy of European Law in Trier is organising a conference on the proposal on 18 February 2010. See events on its website,

International Recovery of Child Support and Other Family Maintenance
By the time of reading, the European Parliament will have opined on a proposal for the EU to conclude the 2007 International Convention aimed at ensuring a more effective recovery of child support and other forms of family (or similar relationship) maintenance. (Procedure reference CNS (2009)0100).

Rome II Regulation - Rights of Privacy and Personality
The EP's Legal Affairs Committee (JURI), is preparing an own initiative report intended to prompt the Commission into proposing a legislative initiative amending the Rome II regulation (EC) No 864/2007, so as to cover the law applicable to non contractual obligations arising out of violations of privacy and rights relating to personality. JURI held a hearing on the subject on 28 January 2010, at which a member of the Bar was invited to speak.

Procedural Rights Suspects and Defendants
At the end of 2009 the JHA Council adopted a resolution setting out a "Roadmap" of 6 separate measures intended to protect the procedural rights of suspects and defendants in the criminal justice system.

The first of these measures, (A) on the right to translation and interpretation was the subject of a 2009 Commission proposal, but as it was not formally adopted by Council before the entry into force of the Lisbon Treaty, it has lapsed.

The other measures foreseen in the roadmap are:

B. Information about rights and about the charges;
C. Legal Aid and legal advice;
D. Communication with relatives, employers and consular authorities;
E. Special safeguards for vulnerable persons
F. A green paper on the right to review the grounds for detention.

The Commission is now under pressure to issue a new proposal for measure A, as well as at least one of the others, during 2010.

Exchange of Evidence in Criminal Matters between the Member States
The Bar responded by the end-January deadline, to the Commission's consultation on how best to obtain and transfer (all forms of) evidence in criminal matters, from one Member State to another, and secure its admissibility. The Commission is expected to adopt a sweeping legislative proposal on this topic later this year.  

Guidelines for Future Criminal Law in EU Legislation
At the end of 2009, the Council adopted Conclusions setting out " Model Provisions, guiding the Council's criminal law deliberations"  to be used by the EU legislator when inserting criminal law provisions into EU legislative instruments adopted in pursuit of EU policies  (e.g. environmental protection) The idea is to have agreed positions on contentious issues that arise repeatedly, e.g. the definition of intent, or what constitutes criminal behaviour.  

Towards an Enhanced Patent System in Europe
The entry into force of the TFEU introduces a specific legal basis (Article 118) for the creation of European Intellectual Property Rights (IPR). Mindful of this, the Competitiveness Council has adopted Conclusions containing a package of measures, which together will form an Enhanced Patent System in Europe. These include:

  • The creation of a European and EU Patents Court ("EEUPC"), the main features of which are set out, including that it is to have exclusive jurisdiction in respect of civil litigation related to the infringement and validity of European and EU patents;
  • A regulation creating the EU Patent, together with a separate regulation on the language / translation arrangements;
  • Enhanced partnership between the European Patent Office ("EPO") and central IP offices of Member States; and

Enforcement of Intellectual Property Rights
The EP's Legal Affairs Committee (JURI) is preparing an own-initiative report responding to the Commission's recent Communication on enhancing the enforcement of Intellectual Property Rights COM(2009)467). A draft report should be available by the time of reading, with adoption in Plenary planned for April. More information,is available here.

EU and Member States Ratify the "Internet Treaties"
At the end of last year, the EU and its Member States ratified the World Intellectual Property Organisation ("WIPO")'s Copyright Treaty and the WIPO Performances and Phonograms Treaty, the so called "Internet" Treaties. The two WIPO copyright treaties contain rules on distribution, rental, the right of public communication and the "making available" of protected content online, all aimed at upgrading the rights of authors, performers and producers to withstand the challenges of the digital age. More information is available here

Interconnectivity of Company Law Registries
The Commission has just closed a public consultation on possible ways to improve access to information on businesses across the EU; and more effective application of the company law directives.