Principles of subsidiarity and proportionality – are they being respected?

The European Parliament has adopted an own-initiative report calling for a signifi cant improvement in the Commission’s compliance with the Treaty-based principles of subsidiarity and proportionality, when proposing EU legislative initiatives. The Treaty obliges the EU only to take action at EU level if nothing less will achieve the agreed objectives, and then to act proportionally. The report gives a good overview of previous efforts to reinforce the principles of better lawmaking; and also looks at the practical experience of subsidiarity control by national
parliaments, introduced by the Lisbon Treaty. Note that, in May of this year, for the very first time, a sufficient number of national Parliaments formally objected to a Commission proposal on grounds of non-compliance with the principle of subsidiarity, to trigger the so-called yellow card procedure, requiring the Commission to review its proposal before any further steps are taken. The proposal in question is for a regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services – see
For the draft EP resolution, see:

Brussels I regulation review – agreement still out of reach

At the time of writing, complex negotiations continue within and between the Council and the European Parliament to try to tidy up remaining loose ends on the revision of regulation 44/2001 on recognition and enforcement of judgments in civil and commercial matters, into which the UK and Eire have opted. (Procedure reference COD(2010)0383). The Bar has been very active on this file over the past three years. All should be clearer for the next update.

Limitation periods in road traffic accidents – Commission consultation

In mid-July, the Commission launched its longpromised public consultation aimed at helping victims of cross-border road traffic accidents to claim compensation. The main challenge is seen to be the variation in time limits for the submission of claims among the Member States. The deadline is 19 November, and the Bar will respond. See:

Proposed directive protecting the EU’s Financial Interests using criminal law

The Commission has adopted a proposal for a new directive which uses criminal law as a tool to protect the EU’s fi nancial interest (Procedure Reference COD(2012)0193).

The directive sets out to create a harmonised framework for prosecuting and punishing crimes involving the EU budget, leaving fewer lacunae for criminals to exploit. It provides for common definitions of offences against the EU budget, minimum sanctions, confiscation of the proceeds of such crimes and common limitation periods for their prosecution. See:

Safeguards for suspects and defendants in criminal proceedings - controversy

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 such defence measures have been adopted, but the third, Measure C – access to a lawyer - the cornerstone safeguard, continues to be the subject of fraught debate within and between the Council and the European Parliament. At the time of writing, meetings to attempt to resolve the issue of client confi dentiality are taking place on a daily basis. Hopefully, a satisfactory outcome will have emerged by the next update.

The patent package – back before the EP for more deliberations

The last update reported on the European Summit’s agreement on the split seat of the Central Division of the new Unifi ed Patents Court. The package is now back before the European Parliament, as the June compromise departed in material respects from a previously agreed text –notably in its deletion of the right of appeal to the ECJ. The legality of this change has been called into question. Note also the Government’s response to the Commons European Scrutiny Committee’s report “The Unified Patent Court: help or hindrance?”, itself published in May. See:

The status of in-house lawyers before the Luxembourg courts

By the time of reading, judgment will have been delivered and digested in the important ECJ cases C-422 and 3, on the issue of the status of
in-house lawyers; specifi cally their right to appear before the Luxembourg courts to represent their employer. The first decision of the General Court last September was seen by the legal profession as an unwelcome extension of the reasoning in the ECJ Akzo Nobel judgment (Case C-550/07). The judgment will be accessible at:

Consultation on reform of state aid procedures

The Commission is undertaking a major reform of its state aid rules and procedures. As part of this process, it is conducting three public consultations, all with October deadlines:
1. A general one on the reform of the State Aid procedures, currently set down in Council Regulation EC659/1999 as amended see:
2. State aid in environmental protection. See: and
3. The de minimis regulation. See:

The future of EU Company Law

The Commission has made public both the responses to its spring 2012 consultation on the future of EU Company law and its own summary (statistical) analysis of the issue. The Bar’s response is included, as well as those of various national ministries and other infl uential bodies.

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
Consultant Director, Bar Council of England and Wales, Brussels Office