June 2012

Report on the Chairman of the Bar's visit to Brussels
On 23 April, Michael Todd QC, Chairman of the Bar 2012, held a series of meetings in Brussels. On this occasion, the agenda was largely focussed on EU justice issues, and included meetings with Commission Vice-President Viviane Reding, Commissioner for Justice and Fundamental Rights; and with senior officials from the Parliament and the Council of the EU, on both the Criminal and Civil Justice sides. Highlights included:

  • The Bar's valuable contribution to the work of all three institutions in diverse areas of law, was acknowledged and appreciated
  • The Bar's status as a key UK legal profession and stakeholder was acknowledged
  • We were repeatedly assured of the importance of the UK taking a leading role in the EU justice field; particularly as EU initiatives are often inspired by our law or legal system
  • The Chairman highlighted the variety of work being undertaken by the Bar and bodies such as the EU Law Committee, to educate its membership on EU law and the opportunities that it provides, and
  • Discussions on key EU initiatives in the justice and fundamental rights fields of import to the Bar, and on which we undertook to make expert contributions to the work of the institutions in the coming months, which included:
  • The Commission's planned proposal on the right to legal aid in criminal proceedings, to be adopted, possibly, in 2013/14
  • The proposal on the freezing and confiscation of the proceeds of crime
  • The planned revision of the Insolvency Regulation of 2000
  • Current proposals applying criminal sanctions to market abuse
  • Negotiations on the Commission's October 2011 proposal for a Common European Sales Law, and the Council's current review of the general approach being taken to the file, and
  • The Commission consultation on limitation periods in road traffic accidents. 

Future EU funding programmes to strengthen justice and rights
To the surprise of many, including in Brussels, the UK decided not to opt into the proposed regulations creating two new five year EU funding programmes, effective from 2014 to 2020. In principle therefore, UK stakeholders will not be eligible to apply for funding under the programmes, unless the government chooses to opt in at a later date. The EP and Council are now considering the proposals. Please see:
http://bit.ly/vo15P8

Consultation on the future European Insolvency Law
In April, the Commission launched an online public consultation on modernising EU rules governing insolvencies, currently laid down in Regulation 1346/200. The deadline for responses is 21 June. The Bar will respond. See: at: 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 include:

  • The JHA Council, meeting on 7 and 8 June, will hold a debate on the file, and intends to define the parameters for the work going forward. This is likely to be less ambitious than the Commission's October 2011 proposal.
  • The EP's Legal Affairs committee (JURI) will hold two further workshops before the summer, and a debate with national parliaments in the autumn, and
  • By the time of reading, the Bar will have responded to the MoJ/BIS call for evidence on the Commission's proposal. 

Mutual recognition of protection measures in civil matters
Negotiations are progressing well in both the EP and the Council on this May 2011 proposal for a regulation on mutual recognition of protection measures in civil matters (not including family law) (procedure reference COD(2011)0130). The text provides for recognition of a civil protection measure granted in one Member State by the other EU Member States, without further formality. It is intended to complement the equivalent criminal justice measure, the European Protection Order (EPO) (criminal matters), which was formally adopted last December. The draft EP report can be seen at: http://bit.ly/IM9t6y

Regulation on cross-border successions will be adopted in June
The JHA Council, meeting in early June, is expected to adopt formally the new 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). The UK is not taking part. The regulation will enter into force in three years' time; from which point it is expected to simplify significantly cross-border EU successions - or at least those not involving the UK or its citizens.

Brussels I regulation review update
The Council Working Group is aiming to achieve political agreement by June 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). The issue of a partial or total exclusion of arbitration remains high on the agenda, along with lis pendens and third countries.

Amendment of Rome II to cover defamation
The EP has adopted an own-initiative report calling on the Commission to amend Regulation 864/2007 on the law applicable to non-contractual obligations (Rome II); to extend its application to non-contractual obligations arising out of violations of privacy and rights relating to personality. It also suggests the creation of an ADR mechanism in that field. See: http://bit.ly/IVo7UY

House of Lords report on EU Criminal Procedural Law
The Bar Council was among the respondees to this House of Lords inquiry late last year. The Lords' recently-published report of its conclusions takes a positive stance on the benefits of EU activities in this particular field; endorses its work on procedural safeguards; and calls for a proactively engaged stance by the UK as regards those initiatives. For the report, go to: http://bit.ly/Kierro

Criminal sanctions for market abuse
Negotiations continue on the October 2011 package of legislative proposals aimed at the markets in financial instruments, their regulation and the prevention of abuses.
Of particular interest to the Bar is the proposal for a directive on criminal sanctions for insider dealing and market manipulation (in Brussels parlance, "MAD"). A key issue in that debate is that of double jeopardy - the recognition that harsh administrative sanctions may have a punitive effect equivalent to criminal sanctions; and for the purposes of the principle of double jeopardy, some Member States argue should be seen as equivalent. One to watch!

Creation of EU Cybercrime Centre
The Commission has adopted a Communication proposing the creation of a European Cybercrime Centre (COM (2012)140 final.), which would centralize the EU's efforts to fight cybercrime, including by acting as an early warning centre, providing training for IT experts and investigating and identifying cybercrime networks. See: http://bit.ly/HlM2B2

Protecting the EUs Financial Interests and the European Public Prosecutor
The Commission is expected to issue a proposal this summer setting out its future plans for the protection of the EU's financial interest and the creation of the European Public Prosecutor (EPP), who will be responsible for this work.

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). It is seen as opening the door to a UK-style non-conviction-based, confiscation system. See: http://bit.ly/KieIKI. The House of Lords has urged the UK to opt into the proposal, a decision that should have been taken by the time of reading.

Safeguards for suspects and defendants in criminal proceedings
Measure B - the right to a letter of rights, (usually) presented to a suspect at the police station and in a language that they understand, was formally adopted by the JHA Council ministers on 27 April, meaning that the Member States now have two years to implement the directive into national law.

Measure C1 /D- access to a lawyer
Difficult negotiations continue in both the Council and the EP on this June 2011 proposal for the roadmap measures on the right of access to a lawyer for suspects and defendants and to communicate with a person of the suspect's choice (procedure reference COD(2011)0154. The UK has not opted into the proposal.

Plans for the remaining measures are still in a state of flux, with differing indications on whether further proposals will emerge from the Commission in the next 18 months: C2, legal aid in criminal proceedings; E, special protection for vulnerable persons; and F, the planned Green Paper on pre-trial detention.

Credit agreements relating to residential property
After months of debate, the EP should, by the time of reading, have adopted its report on the Commission's March 2011 proposal for a directive intended to create a competitive pan-European market in residential mortgages. See: http://bit.ly/IHemiK

Unified Patent Court - House of Commons Committee's scathing report
In May, the House of Commons European Scrutiny Committee published its less than enthusiastic report resulting from its recent inquiry: "The Unified Patent Court: help or hindrance?". For the full report and other related materials, go to: http://bit.ly/ItRG5m

Proposals to modernize the EU public procurement rules
Negotiations in the EP and the Council on this December 2011 package of reform proposals on public procurement appear to be moving in the direction of excluding legal services from scope. If so, this would be a good result for the Bar, but there are other issues of detail that need to be addressed. See: http://bit.ly/JndyOA

The future of EU Company Law - Consultation
The Bar has responded to the Commission's online public consultation entitled "The Future of EU Company Law", calling for flexibility and choice; emphasis on increased administrative cooperation rather than harmonization; and consolidation of existing, similar EU measures. For the consultation documents, see: http://bit.ly/wrIJGQ