June 2013

Chairman of the Bar's visit to Brussels,
April 2013
The latest visit to Brussels by the sitting Chairman of the Bar, Maura McGowan QC, which took place in late April, was a demanding but very successful one. Highlights included Maura's keynote address on behalf of the legal profession at the European Parliament's (EP) Legal Affairs Committee hearing on the reform of the Court of Justice of the EU; meetings with key MEPs from that committee and the Civil Liberties committee, with the Council Criminal justice unit, with the Directorate General Internal Market in the Commission and with the UK Permanent Representation to the EU. We were encouraged by the widely-expressed welcome for meetings, and for the recognition of how valuable the work we do on law reform and professional regulatory issues at an EU level is. Many files below were discussed during the meetings.

HMG's Balance of Competences Review 2013 - 2014
By the time of reading, the Government should have issued calls for evidence to inform its second set of detailed reports on who does what between the EU and the UK. In February, the Bar provided a narrow response to the first call, a synoptic review of the Internal Market. This time we expect to be responding in the fields of civil justice, free movement of persons and goods, and possibly immigration and asylum. The current list and sequencing of reports is on the FCO website at: http://bit.ly/LhYRyz.

Common European Sales Law (contract) - Bar lobbying of the EP
In March, the Bar and the Law Society issued a briefing to Members of the EP, in which we continue to question the need for the CESL, but if it is to be adopted, call for its scope to be further narrowed. See: /about-us/what-is-the-bar-council/the-brusselsoffice/.

Meanwhile, the EP has expressed itself open to further limiting the scope, if that will pave the way to adoption of the measure. It is unlikely however, that we will see more than a brief progress report from the Irish Council Presidency at its June JHA Council meeting. We remain active on the matter.

Commission starts work in earnest on European Insurance contract law
The Commission is expected to adopt a proposal for a related measure, specific to the field of insurance contract law, by the end of the year. It is currently working with a group of stakeholder experts in order to define the scope of the work, however, we can expect the Commission to be ambitious, whatever its experts advise. Initial signs are that it is most concerned with life, non-life; holiday, car and professional indemnity insurance, rather than the more esoteric forms such as re-insurance.

Proposal for a revised Insolvency regulation
The Bar's experts are broadly welcoming of the recent Commission proposal to revise the Insolvency regulation (1346/2000), which tidies up the original and suggests a few more practices that are likely to be helpful. Since both the EP and the Council are also broadly happy, adoption may be possible this year.

Alternative and Online Dispute resolution for B2C disputes
ADR across the range of domestic and cross-border B2C disputes, and ODR in cross-border disputes, are set to become more widely available following the adoption in Council of these two measures in late April: ADR - http://bit.ly/ZhffXc and ODR - http://bit.ly/15zRufv.

Commission Small Claims consultation
The European Commission is concluding a public consultation on the functioning of the European Small Claims procedure, set up by regulation EC 861/2007. The deadline for responses is 10 June 2013 - see: http://bit.ly/WB8ZXI. The Bar planned to respond, in part to encourage greater recourse to this regulation, but it is clear that lack of awareness of the procedure is a problem across the EU.

European Account Preservation Order
The EP's Legal Affairs committee (JURI) adopted a report at its late April meeting (http://bit.ly/12boqpL), amending the 2011 Commission proposal for a regulation creating a European Account Preservation Order (EAPO) (COD(2011)0204) This was done to create a better balance between the rights of the debtor and creditor and is intended to provide an alternative (not a replacement) to existing domestic freezing orders, in cross-border cases. The UK has not opted-in.

Mutual recognition of protection measures in civil matters
By the time of reading, the EP and the Council should have, or be about to, formally adopt the new regulation creating an EU-wide protection order (Procedure reference COD(2011)0130), which will mean that restraining orders granted in national courts should soon enjoy automatic recognition and enforcement throughout the EU.

A complementary measure exists on the criminal justice side, in the form of the directive creating the European Protection Order in criminal matters, which was formally adopted in December 2011 and ensures free circulation of criminal law protection measures throughout the EU see: http://bit.ly/y7QDcA.

Review of Legal Aid in cross-border civil and commercial matters
The EP is calling for improved awareness of this 2003 directive, as well as greater cooperation between the Member States to maximise its uptake. This includes information campaigns, training, greater use of modern technology etc. to improve the situation. It also supports the idea of setting up databases of lawyers who are willing and able to provide their services in crossborder, legally-aided civil cases, which should be of interest to members of the Bar. See: http://bit.ly/12boqpL.

Protocol 36 to the Lisbon Treaty - the 2014 Opt-out - update
The House of Lords' report, which emerged in late April, is unequivocal in its view that the Government has failed to make its case in favour of the block opt-out from the 130 or so pre-Lisbon Treaty criminal justice measures, a decision to be taken before 1 June 2014. For the Lords' report see: http:// bit.ly/17T8Fbx. The Bar Council issued a press release, welcoming the report and highlighting the coinciding visit by the Bar Chairman to Brussels: http://bit.ly/ZFNZ39. All eyes are now on the Commons.

Presumption of innocence
Members of the Bar were among those to respond to the Commission's online consultation asking whether it needs to act in order to ensure that this basic Article 6 ECHR right is more evenly applied in the different Member States of the EU. See: http://www.cses.co.uk/surveys/presumption-of-innocence/.

EU Data Protection Review
Key EP and Council figures are hoping to gain enough time to deliberate fully the many complexities of this crucial matter, which has significant impact for the legal profession, not least in regards to the principle of legal professional privilege, and for the wider business community and general public. The Council is aiming to agree a 'partial general approach' by the June JHA Council, on Chapters 1-4, covering the basic rules and definitions. For EP documents on the fi le. See: http://bit.ly/INZAB0.

Passenger Name records - EP rejection of Commission proposal
In April, the EP's Civil Liberties Committee (LIBE) voted to reject the Commission's controversial February 2011 proposal for a directive which was intended to harmonise and regulate the use of EU air passenger name record (PNR) data in investigating serious crime and terrorist offences (COD(2011)0023).

Employment: Free movement of workers to be enhanced in practice
The Commission has proposed a directive (Procedure reference COD(2013)0124) designed to enhance the application of existing, directly applicable, EU law entitling EU citizens to work in another Member State, thereby making it easier for people to exercise those rights in practice. See: http://bit.ly/11bF39b.

EU consultation on civil enforcement of IP rights in the Member States
The IPBA responded informally to this recent EU consultation, commending the Patents County Court system to the Commission. See the link through to the Bar Council Brussels office page: http://www.barcouncil. org.uk/about-us/what-is-the-bar-council/the-brussels-office/.

CJEU - Enhanced cooperation is ok for the Single European Patent
Joined Cases C-274/11 and C-295/11 Spain and Italy v Council, 16 April
The Court of Justice of the EU dismissed the actions brought by Spain and Italy against the Council's decision authorising enhanced cooperation in the area of the single European patent. In light of it being impossible for the Member States to agree on a common system for the whole EU within a reasonable period, the contested decision contributes to the process of European integration. See: http://bit.ly/17HRMiW.

CJEU Judgment- money laundering - proportionate national law
Case C-212/11 Jyske Bank Gibraltar Ltd v Administración del Estado - 25 April
EU law does not preclude Spanish legislation which requires credit institutions, operating in Spain without being established there, to forward directly to the Spanish authorities information necessary for combatting money laundering and terrorist financing. Where there is no effective mechanism ensuring full and complete cooperation between the Member States which would allow those crimes to be combatted effectively, that legislation is proportionate. See: http://curia.europa.eu/juris/documents.jsf?num=C-212/11.

Company Law - review of the takeover bids directive
In April, the Legal Affairs Committee of the EP (JURI) adopted its own-initiative report in the context of the review of the application of Directive 2004/25/EC on Takeover bids. Like the other institutions that have already contributed to the review, it basically endorses the directive, while making some suggestions for improvement in implementation and application, and takes the opportunity to make a few wider observations. See: http://bit.ly/12bpdqN.

European Foundation Statute
The EU is in the process of adopting a regulation creating a European Foundation (FE) Statute (Procedure reference: APP(2012)002. The idea is to create a single European legal form for public benefit purpose foundations whose activities are cross-border in nature, satisfying certain uniform criteria applicable in all Member States, and existing in parallel with domestic foundations. The proposal and relevant EP documents are linked to this page: http://bit.ly/13YHrwZ.

The work of the Bar's new EU Financial Services Working Group
The Bar's EU Law Committee has recently set up a Financial Services Working Group (FSWG), which is focusing on the legal repercussions of crucial EU financial services measures. One reason for forming this group now is the concern that, particularly in the wake of the ongoing financial crisis, much of what is being proposed / pursued at EU level is prompted by political and economic considerations, often without sufficient weight being given to legal implications and consequences. See more at: http://ec.europa.eu/internal_market/top_layer/financial_capital/index_en.htm.

Commission consultation on Financial Supervision
The Commission is conducting a consultation in the form of an online questionnaire, on the operation of the European System of Financial Supervision (ESFS), following its first two years of activity. The questions focus on the effectiveness and efficiency of the ESFS and its constituent agencies. It also asks for suggestions to improve the existing structure. The deadline for responses is 7 July 2013. See: http://bit.ly/11pnLjL.

Progress on modernising the EU's public procurement rules
By the time of reading, it should be becoming clearer whether the important ongoing revision of the EU public procurement rules will culminate in an adopted text that retains the partial exclusion / light touch regime for advocacy and legal services, which was introduced into Article 10 (c) of the text by the EP's IMCO, as a result of lobbying by the legal profession, including the Bar. See: http://bit.ly/WNZJQH.

This is important for the Bar as it provides for flexibility in the domestic market for legal services, allowing for example, the Ministry of Justice to make up its own mind, as it did some weeks ago, not to require tendering for Crown Court advocacy.

The Reform of the Court of Justice of the EU
The Legal Affairs Committee of the EP (JURI) held a hearing in Brussels on 24 April focussing on the reform of the Court of Justice of the EU (CJEU). The opening panel featured a presentation by Judge Skouris, President of the Court, as well as by the Chairman of the Bar, Maura McGowan QC, who had been invited to speak on behalf of the Legal Profession. The event revealed wide support for the call for additional judges to be appointed to the CJEU, as well as for priority in their appointment to be given to quality and merit, not nationality. Our Chairman's suggestion that there be some form of rules committee / court users committee to provide a formal interface with the legal profession also met with support from others present. For the hearing documents go to: http://bit.ly/13cKqmq.