Key features of the revision include the abolition of exequatur, with some safeguards for the defence; the exclusion of arbitration from the scope of the regulation, but with a form of lis pendens in favour of the seat of arbitration in certain circumstances; and a new provision favouring the courts chosen in a choice of court agreement. The new proposal will be the subject of intense debate in the coming months in the EU institutions.
Commission Consultation on a future European Contract Law – update
By the time of reading, the 31 January deadline for this consultation will have passed. The Bar will have responded directly to the Commission as well as to the Ministry of Justice; and will have contributed to the response by the Council of Bars and Law Societies of Europe (CCBE). The consultation is likely to have attracted a high number of responses opining on the possible ways forward, but the Commission has pre-judged its results by launching in June 2010, work on developing an optional contract law instrument (OI) from the draft Common Frame of Reference. Indeed it plans to adopt a legislative proposal on the OI during 2011. The Bar is not supportive.
Consumer Rights Directive (CRD) – update
Following months of deadlock in Council and in the European Parliament, in December 2010 the Competitiveness Council agreed on the way forward on this 2008 proposal, basically deleting the bulk of Chapters IV and V. Many commentators (particularly on the consumer side) believe that this deletion effectively removes the main consumer protection elements from the proposal. If the Council’s approach is supported in the EP, that may encourage greater support for the adoption of the European Contract law OI (see above). For the Council agreement. See:
The Commission’s legislative proposal on matrimonial property is due out in the first half of 2011. The Bar has been actively involved in a high-level UK stakeholder group which has been trying constructively to contribute to the Commission’s preparatory work on this file, culminating in December in the submission of a paper in which we suggested that they include provision either for the transfer of proceedings, or their bifurcation, in order to admit of the possibility that the UK might take part in the future regulation. We wait to see what comes of it.
Rome III – divorce and legal separation – adopted
Political agreement on its terms having been secured at the early December JHA Council, on 20 December, the Council formally adopted the new EU regulation that will define the law to be applied to the divorce or legal separation (but not to validity issues or ancillary matters) of “international couples” in the 14 (currently) Member States that are signing up to it. For the adopted text, see: http://register.consilium.europa.eu/pdf/en/10/st17/st17523.en10.pdf. The file is noteworthy in that it is the first time that a measure has been adopted at EU level through enhanced cooperation (Title III, Articles 326-334 TFEU).
Consultation on the free circulation of civil status documents
In December 2010 the Commission adopted a Green paper (GP) on the free circulation of civil status documents, their recognition and enforcement. The GP looks at ways to overturn the obstacles that make it difficult for EU citizens to, for example, have a change of surname; adoption; formal recognition of paternity, etc recognized in another Member State. One of the ideas mooted is the creation of a European Civil Status certificate. The deadline for responses is 30 April 2011.
Consultation on common principles of collective redress
By the time of reading, the Commission should have launched this horizontal consultation, prepared and run jointly by DGs SANCO, COMP and Justice. The commission’s Work Programme 2011 anticipates adoption of a follow-up Communication setting out the general principles, later in 2011.
Consultation on ADR
By the time of reading, the Commission is due to have launched a public consultation seeking ways to improve the availability and use of alternative dispute resolution (ADR) mechanisms in the Member States. This is intended to lead to a legislative proposal towards the end of 2011.
Roadmap of Procedural Rights for suspects and defendants – progress
In December the Council agreed a general approach on EU-wide minimum standards as regards the right to information in criminal proceedings. The text stipulates that any person arrested has the right to receive upon arrest a so-called “Letter of Rights” in a language and style that he or she understands, and with certain heads of information prescribed. Negotiations continue, with adoption foreseen by the end of the Hungarian Council Presidency in June 2011.
European Protection Order – EP adopts, now up to the Council
The proposal for a European Protection Order (EPO) is based on a joint initiative of twelve EU Member States, presented in January 2010. The aim of the directive is to facilitate and enhance the protection granted to victims of crime, or possible victims of crime, who move between EU Member States. In December 2010 the EP in Plenary adopted a resolution supporting the draft directive, and calling on the Council to do likewise.
Rights of victims of crime
As foreseen in its 2011 Work Programme, during 2011, the Commission intends to adopt a new, comprehensive legislative proposal on victims of crime - rights, protection, compensation etc. As part of its preparations, it conducted a stakeholder consultation during the second half of 2010, to which the Bar responded.
Sexual abuse and exploitation of children
At the end of March 2010, the Commission adopted a proposal for a directive on combating the sexual abuse, sexual exploitation of children and child pornography. In December 2010, the Council agreed the draft directive, and it is to be hoped that intense negotiations with the EP will result in a quick, final adoption.
Trafficking in human beings
By the time of reading, this directive should have been definitively adopted. It contains EU-wide minimum rules, including a wide definition of the criminal offences of trafficking in human beings; maximum sentences; and preventive and protection measures. The new Directive replaces Decision 2002/629/JHA and will apply to all Member States but Denmark and the UK, though we may opt in later on.
PNR – plans for an EU system
In October 2010 the Commission gave an undertaking to the Council that it would present a proposal for an EU PNR system in January 2011. This will govern the transfer and use of passenger name records (PNR – the data supplied “voluntarily” by passengers). Negotiations are underway with several third countries too.
Council conclusions on combating Identity fraud
At its December 2010 meeting, the JHA Council adopted conclusions on EU and Member State
measures to combat identity fraud, including calling on the Commission to establish a European identity management strategy.
In December 2010 the Commission launched a public consultation in anticipation of its planned Communication looking at simplifying and streamlining the VAT system EU-wide. Deadline 31 May 2011. Relevant Bar bodies have been informed. See: http://ec.europa.eu/taxation_customs/common/consultations/tax/2010_11_future_vat_en.htm
Recognition of Professional qualifications – consultation during 2011
In 2010 the Commission launched a review of the implementation of Directive 2005/36/EC on recognition of professional qualifications (including legal). In this context, it plans to issue a major public consultation on its future policy during the second half of 2011, with a view to issuing a legislative proposal thereafter.
EU Patent – update
On 14 December 2010, following a request by the Competitiveness Council meeting on 10 December, the Commission presented a formal proposal for initiating enhanced cooperation on this long-beleaguered file.
Consultation – expanding the use of e-Procurement
The Commission has just conducted a consultation seeking views on how the EU can help Member States to fully exploit e-procurement’s potential; increase its use, and allow operators from other Member States to participate in on-line procurement procedures. This may impact on future Bar competitive tendering for contracts.
http://ec.europa.eu/internal_market/consultations/docs/2010/e-procurement/green-paper_en.pdf 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: firstname.lastname@example.org
Evanna Fruithof, Consultant Director, Bar Council of England & Wales, Brussels Office