December 2012

Protocol 36 to the Lisbon Treaty - the 2014 opt-out
You cannot fail to have picked up on the mounting debate on the UK's one-off opt-out from a block of EU criminal judicial cooperation measures, a decision that needs to be taken by the end of May 2014. The issue took centre stage at the EU law workshop at the Bar conference in London on 10 November, and we will continue to highlight the importance of a full and frank debate of all aspects, including in the context of forthcoming UK Parliamentary inquiries. See:

Brussels I regulation review - final steps towards adoption
In October, the Legal Affairs Committee (JURI) of the European Parliament (EP) adopted the agreed text reforming the Brussels I regulation 44/2001, containing the rules to determine which national court has jurisdiction in cross-border civil and commercial cases and how court judgments issued in one EU country are recognised and enforced in another. By the time you read this, the EP should have formally adopted the text in plenary, allowing rapid adoption by the Council thereafter. It may even enter into force before year's end.

The key change is the abolition, with safeguards, of the "exequatur" procedure, which had been a pre-requisite to having a judgment in civil and commercial matters recognized in another EU country.

Limitation periods in road traffic accidents - Commission consultation
The Bar responded to the national and Commission consultations aimed at identifying ways to help victims of cross-border road traffic accidents to claim compensation. The Personal Injuries Bar Association (PIBA) prepared our response, approving the response of the Pan-European Organisation of Personal Injury Lawyers (PEOPIL). PEOPIL calls for an EU regulation that would lay down minimum standards for limitation periods and related procedural issues, for the benefit of the victims of cross-border road traffic accidents.

Common European Sales Law (contract) - EP views
Regular readers will know of the Bar's engagement in the more than decade long debate on this file, which led to the adoption in October last year of the Commission proposal for a regulation creating the Common European Sales Law ("CESL", Procedure reference COD(2011)0284), an optional instrument to be used for cross-border B2C sales, and B2B ones involving at least one SME. For a flavour of how the various committees of the European Parliament are viewing the file at this stage, see: The Legal Affairs Committee (JURI) Working Document, at:

JURI's recent debate with national parliaments:

Papers from the recent Internal Market Committee hearing on the consumer aspects of the CESL:

and the Economic and Monetary Affairs committee's lukewarm opinion on the CESL, adopted on 11 October:

By the time of reading, the Bar will have adopted its own substantive position paper on the proposal, and we will also have had sight of the long-awaited formal UK position on the file. The absence of such a position was noted by many at the June Justice Ministers meeting where the way forward on the proposal was agreed.

Proposed ADR and ODR for business to consumer disputes
In October, the EP's Internal Market and Consumer Protection Committee (IMCO) adopted a report approving, with amendments, the Commission's 2011 proposals to make available, throughout the EU, alternative means of dispute resolution (including online - hence the "o" in ODR) for contractual disputes between consumers and traders, arising from the sale of goods or the provision of services. The reports are due to be endorsed by the EP in Plenary in January 2013.

Minimum rights, support and protection of victims of crime agreed
The Council has formally adopted a directive giving parity of rights and protections (including understandable information; special needs, etc.) to victims of crime throughout the EU, estimated to number 75 million annually. See:

Roadmap of procedural safeguards - Measure C - Access to a lawyer
For several years, the Commission has been trying to balance EU 'prosecution', mutual recognition measures such as the European Arrest Warrant, with defence measures. Two have been adopted. The third, measure C, contained in a June 2011 Commission proposal, and the right to communicate with a person of the suspects choice. The UK has not opted in to the proposal. By the time of reading, there may have been a breakthrough in negotiations, but at the time of writing, the Council negotiations were still mired in controversy over derogations (in particular, from client confidentiality); evidence gathering acts; the treatment of minor offences and detention conditions. It does not bode well for the future negotiations on the proposal for Measure D on the provision of legal aid in criminal cases, which the Commission plans to propose next year.

FTI reports on safeguards
Fair Trials International (FTI), the UK defence rights charity, has very recently published a series of summary reports on the Roadmap measures, which you may find of interest. See:

European Arrest Warrant - JUSTICE report and key CJEU opinion
JUSTICE has produced an informative report on the workings of the European Arrest warrant from a defence perspective, which concludes that the provision of safeguards for the defence is woefully inadequate, and suggests changes to counter that. See:

In late October, Advocate General Eleanor Sharpston QC produced a thorough opinion on the application of the EAW, in which she confirmed her view that its application is covered by the proportionality principle, which limits its use for minor offences, and also clarified that a court may refuse to execute an EAW on human rights grounds. It is not yet known whether the Court will follow her opinion, but defence lawyers certainly hope it does. Case C 396/11 Radu:

Freezing and confiscation of the proceeds of crime
In March 2012 the Commission adopted a proposal for a Directive, in which the UK is not partaking, that lays down the minimum rules for Member States with respect to freezing and confiscation of criminal assets through direct confiscation, value confiscation, extended confiscation, non-conviction-based confiscation and third-party confiscation. The Parliament and the Council are each working on defining the scope and other characteristics of these various types of order. For their thinking as at late October, see: and

Presumption of innocence
The Commission is currently considering 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. Depending on the conclusions it reaches, we may see a proposal in this field towards the end of 2013.

Towards a European Public Prosecutor's office
The President of the European Commission has himself recently confirmed Commission plans to table a proposal, probably during 2013, creating the European Public Prosecutor's Office (EPPO). In mid-2012, a group of academics, linked to the University of Luxembourg, produced a set of model rules for the EPPO (the creation of which is provided for by Article 86 TFEU). See:

Modernisation of company law
By the time of reading, the Commission should have adopted a major legislative proposal on the modernisation of Company law, by way of follow-up to its spring 2012 consultation on the future of that area, to which the Bar responded. Do check on its website at:

Statute for a European Mutual Society
The EP's Legal Affairs Committee (JURI) is developing an own-initiative report calling on the Commission to adopt a new proposal creating a European Mutual Society (2012/2039(INI), in an attempt to revive a proposal that was withdrawn for lack of progress in 2006. Both institutions are concerned that "Mutual societies operate in sectors of key importance to citizens (health, banking, insurance, etc.) but they hardly ever provide their services in more than one Member State".

Maximising the benefits of the Services Directive
The Commission has issued a Communication in which it explores various possible ways to maximise the benefits of the 2008 Services Directive. See: and

Key consultation on the structural reform of the EU banking sector
In October - November, the Commission ran a short but key consultation on the future structure of the banking sector in the EU. See:

Is insolvency law enough when non-bank financial services fail?
The Bar responded to the Commission's spring 2012 consultation on a review of the insolvency regulation. The Commission is consulting, until the end of December, on whether insolvency law is enough, or whether more specialist systems are needed when non-banking financial services fail. The consultation explores a possible recovery and resolution framework for non-banking financial institutions. For more details, go to:

Unleashing the potential for cloud computing in Europe
The Commission has adopted a Communication that looks at ways to maximise the benefits offered by cloud computing, whilst dealing with the potential problems associated therewith e.g. in relation to the security of data. See:

Single Market Act II
In April 2011 the Commission presented the Single Market Act, a Communication that set out twelve levers designed to boost growth and strengthen confidence in the Internal Market. In October 2012 the Commission proposed a second set of actions in its follow-up Communication. Single Market Act II. See:

Late Payments Directive - how it works Information campaigns are being launched in the Member States on the Late Payments Directive and its implementation at national level. See:

Judicial appointments at the CJEU in Luxembourg
On 8 October, Monckton Chambers' loss became the Court of Justice of the EU's gain, when Christopher Vajda QC was sworn in as the new UK judge, replacing Sir Konrad Schiemann. He was sworn in on the same day as José Luís da Cruz Vilaça, the new Portuguese judge.

Merry Christmas and a Happy New Year!