Brussels News December 2009
Lisbon Treaty Ratification
The European Council, meeting in late October, agreed to add a protocol to the Lisbon Treaty which will allow the Czech Republic to opt out of the Charter of Fundamental Rights, just as the UK and Poland have done. This will mean that the Charter applies only to EU, and not national, legislation, in those Member States. Left with no valid excuse not to, the Czech President signed the Treaty on 3 November, bringing the ratification process to completion in all 27 Member States. Thus, the Treaty of Lisbon should enter into force by the year’s end.
International News December 2009
The EU’s work programme for the next 5 years in the area of Justice Liberty and Security, which is to be adopted at the December Summit in Stockholm, has been the subject of wide consultation and debate over the past 18 months. At the time of writing, the most up-to-date version is the Swedish Presidency draft, which can be seen at: http://register.consilium.europa.eu/pdf/en/09/st14/st14449.en09.pdf
Proposal for a Regulation of Conflicts Rules in Succession
The Commission has adopted a 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. Its central tenet is that the default jurisdiction and law applying to a succession will be that of the habitual residence of the testator at the time of death, overridden only by an express choice for his law of nationality. Her Majesty’s Government is consulting the public on the proposal, including on whether or not the UK should opt-in by the end January deadline. The Bar is actively engaged in all relevant debates. See: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0154:FIN:EN:PDF
Brussels I Regulation Review
The EU is currently conducting a 5-year review of the operation of the Brussels I Regulation, 44/2001 on “jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”. In October, the European Parliament Legal Affairs Committee (“JURI”) held a hearing at which Alexander Layton QC was invited to speak on behalf of the Bar. The EP is working on its report. See:
http://www.europarl.europa.eu/activities/committees/hearingsCom.do?language=EN&body=JURI. The view of the Council will be crucial.
Explanatory Report on Lugano Convention of 2007
The Lugano Convention of March 2007 (which covers similar ground to the Brussels I regulation, but as between the EC, Denmark, Iceland, Norway and Switzerland) now has an accompanying explanatory report, for use by national courts to clarify the meaning of the Convention and facilitate its uniform application. See:
http://register.consilium.europa.eu/pdf/en/09/st12/st12277-re01.en09.pdf
Protocol on The Law Applicable to Maintenance Obligations
The EU is taking the steps needed for it to sign up to the Hague Protocol of 2007, which would mean that EC Regulation No 4/2009 on jurisdiction and enforcement of Maintenance Obligations becomes applicable either on 18 June 2011 or from the date of application of the Hague Protocol. See:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-428.221+01+DOC+PDF+V0//EN&language=EN
Family Law – Matrimonial Property Regimes
The Commission has publicly confirmed its intention to produce a legislative proposal on matrimonial property regimes, probably in late 2010.
Rome I Corrigendum – Linguistic Error Re Its Application In Time
The wording of Article 28 of the Rome I regulation is being amended from “This Regulation shall apply to contracts concluded after 17 December 2009" to say “This Regulation shall apply to contracts concluded as from 17 December 2009."
Procedural Rights for Suspects and Defendants
The JHA Council has adopted a resolution setting out a “Roadmap” of separate measures intended to protect the procedural rights of suspects and defendants in the criminal justice system. The first of these measures,
(A) on rights to translation and interpretation (11917/09), is already nearing adoption in Council. The other measures foreseen in the roadmap, to be implemented in the coming years, 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.
Rights of Victims of Crime
The JHA Council has formally asked the Commission and the Member States to embark on a major strategy to ensure the fulfilment of rights and support for victims of crime in the EU. Look out for Commission legislative proposals on the subject in 2010. http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/jha/110726.pdf
European Evidence Warrant
By the time of reading, the Commission should have launched a Green Paper consultation on an ambitious revamp of the European Evidence Warrant, which would extend its use to, for example, conducting interviews, videoconferencing, the collection of forensic evidence etc. This is part of the build-up to what is expected to be a headline criminal justice legislative proposal next year.
Grounds for Refusal to Execute an EAW – Member State Discretion
On 6 October 2009, the ECJ gave judgment in Case C-123/08, an application for a preliminary ruling concerning the grounds for refusal to execute a European Arrest Warrant (EAW), and the discretion the Member States have in implementation thereof. (Framework Decision 2002/584/JHA). See:
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-123/08
EU – US Agreement on Extradition and Mutual Legal Assistance
The JHA Council has adopted a decision approving the conclusion of two agreements with the USA, one on extradition, the other on mutual legal assistance. As a result of the former, all 27 bi-lateral extradition treaties with the US will need to be renegotiated.
http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/jha/110727.pdf
Settlement of Conflicts of Exercise of Jurisdiction In Criminal Proceedings
By the time of reading, the Council should have adopted a new Framework Decision aimed at resolving jurisdictional conflicts in criminal cases, through the establishment of a procedure for contact between the competent authorities, and rules on their exchange of information.
Transfer of Proceedings in Criminal Matters
This recent proposal for a framework decision (Ref CNS 2009/0811) will establish common rules facilitating the transfer of criminal proceedings between Member States. It is complementary to the FD above on the exchange of information between conflicting jurisdictions. It should be agreed in Council before the end of the year.
UK Implements the EU Law on Mutual Recognition of Financial Penalties
The UK has implemented the 2005 Framework Decision on mutual recognition of (court-ordered) financial penalties no longer subject to appeal. The implementing measures were included in the Criminal Justice and Immigration Act 2008.
http://www.sparksproject.org/Userfiles/File%5CBriefing%20for%20MoJ%20Press%20Office%20MRFP%2025%20Sept09%20(2).pdf
Guidelines for Future Criminal Law in EU Legislation
On 9 October, the Swedish Presidency tabled a draft set of guidelines and model rules for use by the EU legislator when inserting criminal law provisions into EU legislative instruments. The idea is also referred to in the Presidency draft Stockholm Programme. See: http://register.consilium.europa.eu/pdf/en/09/st14/st14162.en09.pdf
Small Business Act – Late Payment in Commercial Transactions
As part of its overall efforts to ease the administrative burdens on SMEs through the Small Business Act, the EU is in the process of adopting a directive to recast Directive 2000/35/EC so as to improve the effectiveness and the efficiency of remedies for late payment, through, in particular, the introduction of an entitlement to the recovery of administrative costs and compensation for internal costs incurred due to late payment.
Conference on the European Company Stature
The Commission plans to host a Conference on the operation and impact of the European Company Statute in May 2010.
Competition – Damages in Antitrust Cases
The Commission’s much-anticipated proposal for a directive on antitrust damages (several incarnations of which have been circulating this year) received a near-fatal blow from the European Parliament in October. It remains to be seen whether it can be revived once a new Commission is in place next year.
Enhanced Patent System in Europe
The Swedish Presidency of the EU has been enthusiastic in its attempts to secure agreement on a Unified Patent Litigation System, including the planned adoption of Council Conclusions on an Enhanced Patent
System in Europe. See: http://register.consilium.europa.eu/pdf/en/09/st14/st14040.en09.pdf
Commission Consultation on IP Protection of Online Content
The Commission is consulting the public on how to develop vibrant online markets for goods and services protected by intellectual property rights. The consultation addresses the role of legal online markets and explores a variety of copyright management models. Deadline for responses is 5 January 2010. See: http://ec.europa.eu/internal_market/consultations/2009/content_online_en.htm
Evaluation of the Lawyers’ Establishment Directive
Directive 98/5/EC allows a lawyer qualified in one EU Member State to practise under home title on a permanent basis in another Member State; or to choose, after three years’ practice of host state law (including Community law), to acquire the title of the host state Bar. The operation of the directive, in force since March 2000, is to be reviewed by the Commission, probably in 2011/12. In anticipation, the Council of the Bars and Law Societies of Europe (“CCBE”) is running its own internal evaluation.
Planned Commission Consultation on the Services Directive
The Commission intends to consult interested parties in the first half of 2010, regarding evaluation of changes introduced in the regulatory framework applicable to services, to comply with the Services Directive (2006/123/EC). The directive is supposed to be fully implemented by the Member States by 28 December 2009.
ECJ Judgment on Employment Rights of Pregnant Workers
Case C-63/08 Pontin v Comalux, preliminary reference. Pregnant workers must enjoy effective judicial protection of their rights under Community law. Where the only remedy available under national legislation to a worker dismissed during pregnancy does not provide adequate time-limits within which to bring proceedings, that legislation introduces less favourable treatment linked to pregnancy and constitutes discrimination against female employees
Rights of Passengers Travelling by Sea, Waterways, Bus and Coach
The EU is in the process of agreeing two regulations concerning the Rights of passengers, the first when travelling by sea and inland waterway; the second by bus and coach (procedure reference COD (2008) 0246 and (2008)0237 respectively). The proposals relate to coordination between national authorities, but also deal with issues of compensation and damages. The Council has reached political agreement on a common position on the waterways proposal, see:
http://register.consilium.europa.eu/pdf/en/09/st14/st14354.en09.pdf
Merry Christmas and Happy New Year!
