Brussels News April 2010

Proposal for a Regulation on Conflicts Rules in Succession
In October 2009, the European Commission adopted a much anticipated 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 (Procedure reference COD(2009)0157. The UK and Ireland have not opted in, in part due to the issues of clawback (the risk that inter vivos gifts can be challenged and set aside after death) and the current provisions on jurisdiction and certificates of succession. Other Member States have difficulties too. The Spanish Presidency is hoping to agree the three "big picture" chapters by July: scope, jurisdiction and applicable law. The Bar is inputting its views.

Brussels I Regulation Review
In 2009 the Commission launched its 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". The Commission is analysing the responses to last year's consultation, including on the controversial issue of its application to arbitrations, on which it may seek further expert input. Given the complexities of the file, and the volume of competing work, the Commission is unlikely to issue a proposal this year, but should do in 2011.

Transparency of Debtors' Assets
In 2008 the Commission conducted a public consultation on this issue, to which the Bar responded, suggesting that a practical solution could be to create a European Provisional Order. That idea was picked up in the EP's own April 2009 resolution on the consultation, and the Legal Affairs Committee of the EP is now looking in more detail at prompting the Commission to issue a legislative proposal giving it effect. The Bar is active on the file.

Review of Support for Victims of Crime
The European Commission is currently reviewing two existing EU measures designed to support victims of crime: Council Directive relating to compensation to (cross-border) crime victims 2004/80/EC and the complementary Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings. The Commission is expected to launch a public consultation this Spring, with all options open, including possible new EU legislation.

Exchange of Criminal Evidence
The Bar Council recently responded to the Commission's Green Paper on the possible extension of the European Evidence Warrant, to cover evidence that is not yet in existence (e.g. taking a witness statement) or that exists but is not directly available without further action (e.g. obtaining DNA samples). The existing EEW is widely seen in practice as too limited in scope. The Bar is calling for defence rights to be dealt with first, and for provision to facilitate the obtaining of defence evidence cross-border too. At the time of writing it is not yet clear whether the Commission will issue its own proposal, or be beaten to it by a Member State proposal on the issue of obtainability of evidence, which is also in the works.

Victims of Domestic Violence - The European Protection Order
By the time of reading, the Council should have adopted conclusions on "the eradication of violence against women in the EU", in line with a call from the European Parliament in 2009. One of the measures is a proposal for a directive establishing the European Protection Order, allowing victims of domestic violence to move to another EU Member State without losing the benefit of a protective measure (e.g. a non-molestation order) issued in the original Member State. The issue is complicated however, by the fact that such cases are variously treated as criminal, civil, or a hybrid, by the Member States. The Spanish Presidency is pushing for progress. 

Procedural Rights for Suspects and Defendants
In November 2009, the Council adopted a "Roadmap" of 6 separate measures intended to protect the procedural rights of suspects and defendants in the criminal justice system. Member States have been negotiating a draft directive, Measure A on rights to interpretation and translation, based on the proposed Framework decision aborted last year when the Lisbon Treaty came into force. In early March, the UK confirmed its willingness to take part. However, on 9 March, the Commission itself issued a separate, more ambitious proposal (Reference COM82/3). It is not clear which one will take precedence.  A proposal to create the letter of rights, Measure B, (but not including reference to the right to access to a lawyer), is expected to be adopted just before the summer. It may simply set up a template, but not seek to harmonize content.

Belgian Presidency Study on Operation of Criminal Justice Measures
The Belgian Council Presidency, which will last from July to December 2010, will undertake a broad study on the effectiveness of existing EU criminal justice measures and the possible need to replace many of them with new Lisbon Treaty legislative instruments.

Best Practice in Antitrust Proceedings
At the beginning of March, the Bar Council, together with the Law Society, jointly responded to 3 linked Commission consultations in the competition field, launched in January.

Consumer Protection
The EP is shortly to adopt an own initiative report on Consumer Protection under the new Lisbon Treaty and the priorities and policies it wishes to see in the future. It is also opining on the completion of the Internal Market for Consumers.

Consumer Rights Directive: Hearing with National Parliaments
The EP held a hearing in late March with National Parliaments on the proposal for a Consumer Rights Directive (2008/0196/COD). The focus of the debate was the appropriate level of consumer protection and the Commission's full harmonisation approach.  The Bar supports targeted full harmonisation, leaving issues such as remedies to Member State national law. The EP is aiming for an adopted report on the proposal by the summer.

Appeal to CJEU on Lawyer - Client Confidentiality and Inhouse Counsel
C-557/07, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission
The Court of First Instance decision of September 2007, which declined to take the opportunity to extend the scope of Legal professional privilege in EU law to in-house counsel who are members of Bars or law societies, is subject to appeal before the Court of Justice of the EU. The opinion of Advocate General Kokott is expected on 29 April 2010.

Enforcement of Intellectual Property Rights
In May, the EP should adopt an own-initiative report responding to the Commission's 2009 Communication on enhancing the enforcement of Intellectual Property Rights COM(2009)467).

JHA Council Conclusions on the Financial Crisis
The Council's Civil Justice Working Group has been developing a set of Council conclusions on the justice response to the financial crisis. It will cover measures in the justice field that should contribute to future financial stability, including enforcement of judgments; transparency of debtors' assets; insolvency law instruments, as well as more security-orientated issues. It was to have been adopted in Council by now, but as at the time of writing, has not been.

Combating Late Payments in Commercial Transactions
The EP is due to adopt its draft report on this April 2009 proposal at the May Plenary session.