Brussels News April 2009
Brussels I Regulation Review
In late January, the Bar was represented on the panel at a European Parliament hearing anticipating the review later this year of regulation 44/2001 (“Brussels I”), and focussing on the controversial ECJ case law in the field. A report of the hearing is available here.
By the time of reading, the Commission should have issued its consultation report on the application of Brussels I, outlining problems with the current regulation and proposing possible solutions. A proposal for a reviewed regulation is expected later this year.
ECJ Judgment Torpedoes Anti-Suit Injunctions: Case 185/07 West Tankers
On 10 February, the Grand Chamber of the ECJ delivered judgment on one of the cases discussed, above, the reference for a preliminary ruling by the House of Lords in Case 185/07 Allianz SpA, Generali Assicurazioni Generali SpA, v West Tankers Inc.
Green Light For EC Signature of Hague Convention on Choice-of-Court Agreements
The JHA Council has recently adopted the Council decision (proposed last September) on the signing on behalf of the EC of this 2005 Convention, ensuring that choice-of-court agreements included in international trading contracts entered into by EU companies are respected; and judgments issued by the courts designated in such agreements, are eligible for recognition in the other States party to the Convention.
Guidance on Rome II – Applicable Law in Non-Contractual Matters
The Rome II regulation on applicable law in non-contractual obligations, definitively adopted in July 2007, entered into force on 11 January 2009. The Ministry of Justice has recently issued guidance on its application.
Family – Cooperation on Maintenance Obligations
The new EU regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations ( Regulation (EC) No. 4/2009) was published in the Official Journal (L7/2009) and entered into force in January 2009. The UK government has formally applied to opt-in.
Wills and Succession
The Commission should have adopted its much anticipated proposal on jurisdiction and applicable law, etc, in this complex field, by the time of reading. If so, the UK has 3 months to decide whether to opt in to the proposal. The Chancery Bar will comment.
European Contract Law and the Common Frame of Reference
January 2009 saw the issue of the long-awaited Academic Common Frame of Reference (“ACFR”) (replacing the Draft CFR which came out this time last year). It is available on the Commission’s CIRCA database. The Commission is currently undertaking a pruning exercise to produce a “practical” version, on which there will be a White Paper consultation before the end of the year. The Bar will respond.
Improving the Transparency of Debtors’ Assets
The responsible committee of the European Parliament is, as I write, debating its draft report on the Commission’s March 2008 Green paper aimed at identifying possible EU measures to Improve the transparency of debtors' assets and the right of creditors to obtain information. The Bar is hoping it will support (research into) the possible introduction of EU provisional measures, in particular to deal with recalcitrant debtors.
Protection of the Environment Through the Criminal Law
Directive 2008/99/EC, whereby criminal sanctions can be applied for breach of environmental measures (Official Journal L 328 of 06/12/08 ), entered into force on 26 December 2008, and must be implemented into Member States’ law by the end of 2010.
Recently Adopted Criminal Law Framework Decisions
Newly-adopted criminal law measures, and a little more detail on others previously reported (to access the texts, go to http://eur-lex.europa.eu and enter the OJ reference in the search engine)
- Council Framework Decision 2008/841/JHA (OJ L300 of 11/11/2008) on the fight against organized crime sets out a common definition of organized crime, and requires Member States to punish it.
- Council Framework Decision 2008/913/JHA (OJ L 328 of 6/12/08) on racism and xenophobia, which renders criminal, public acts designed to incite violence or hatred, or trivializing genocide and similar atrocities.
- Council Framework Decision 2008/919/JHA (OJ L330 of 09/12/08) amending FD Decision 2002/475/JHA on combating terrorism, so as to include 3 new offences:
• public provocation to commit a terrorist offence;
• recruitment for terrorism; and
• training for terrorism.
- Council Framework Decision 2008/977/JHA (OJ L 350 of 30/12/08 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters.
It lays down rules on the exchange of personal data; sets minimum common standards on the confidentiality and security of the processing; on liability, and on the obligation to lay down penalties for unlawful use.
- Council Framework Decision 2008/978JHA (OJ L 350 of 30/12/08), creating the European Evidence Warrant for the purpose of obtaining existing objects, documents and data for use in proceedings in criminal matters from another Member State within a short time frame.
- Council Framework Decision 2008/909/JHA (OJ L 327 of 05/12/08) on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the EU.
- Council Framework Decision 2008/947/JHA (OJ L 337 of 16/12/08) on the application of the principle of mutual recognition to judgments and probation decisions; provides for the supervision of such alternative sanctions, in cases where e.g. offenders do not live in the State of conviction.
Framework Decisions Adopted at JHA Council End February 2009
- Council framework decision on the organisation and content of the exchange of information extracted from criminal records between Member States; and
_ Council Framework Decision on “in absentia judgments”, amending 5 existing decisions, including the EAW so as to enhance procedural rights.
Procedural Rights – Commission Still Seeking a Way Forward
The Commission would like to re-issue its previously aborted proposal for a Framework Decision on minimum procedural safeguards for suspects and defendants in criminal matters. However, a more piecemeal approach may be all that the Council will entertain – possibly an action plan, with individual elements of the original proposal taken forward one-at-a-time. Arguably better than nothing, but hardly the balance to e.g. the European Arrest warrant, that defence lawyers seek.
Consumer Collective Redress
In early March, the Bar Council submitted a written response to the Commission’s November 2008 Green Paper on Consumer Collective redress. The Bar expressed no preference either way on the need for, or desirability of, developing collective redress mechanisms at EU level, but did indicate which features it would favour and which not, were that to be proposed.
EU Consumer Rights Directive
The Bar has responded to the BERR consultation on the Commission’s October 2008 proposal for a horizontal EU consumer rights directive, and is inputting its views to the EU institutions too. The key points of principle were that:
]- There should be no attempt to combine expanding the scope of the existing directives with maximum harmonisation
- Targeted maximum harmonisation provides the best opportunity to maintain an appropriate balance.
- The proposal provides for maximum harmonisation over too broad a range
Key Internal Market Issues For 2009
In early March, the Competitiveness Council adopted a Key issues paper for 2009 in the area of the internal market, highlighting the urgency of simplifying the regulatory environment for business, in particular SMEs as just one of the areas of focus for EU activity to help to alleviate the current financial crisis.
Think Small First – Company Law
By the time you read this, the European Parliament should have adopted further resolutions in support of the Commission’s “Think Small first” campaign to simplify the operating environment for SMEs, including the proposal creating the European Private Company statute; and an own-initiative recommendation requesting the Commission to issue a proposal to simplify the process of transferring a company seat
European Foundation Statute – A Possibility
The European Commission is conducting a public consultation on the difficulties foundations face when operating cross-border and the possible creation of European Foundation Statute to deal with those, including looking at how such a Statute might affect donors' and founders' attitudes (there being tax and other implications). The deadline for responses is 15 May 2009. For all relevant documentation.
Intellectual Property: Extension of Copyright Term
The July 2008 proposal to extend copyright protection from 50 to 95 years, for performers and phonogram producers, should have been adopted by the EP by the end of March.
Competition – State Aid Rules for SMES
The Commission issued a new handbook at the end of January.
European Transparency Initiative
Having considered the matter carefully, the Bar Council has taken the decision, in the interests of its members and of transparency, to register on the voluntary register of interest representatives of the European Commission. Its registration should cover the activities of members of the Bar attending events etc in Brussels on the Bar Council’s behalf.
Developments on these and other current issues are reported on in Brussels News, the regular newsletter of the Brussels Office for members of the Bar of England & Wales. Please e-mail: Evanna Fruithof.
