The Bar Council in Brussels

It is 12 years since the Bar Council Brussels Office began operations, with me at its helm. September 1999 also saw the first European Council conclusions on Justice and Home Affairs – heralding an ever-expanding EU remit which accounts for a significant portion of the work of the Brussels Office today.

In those 12 years, the office has represented the Bar’s interests on the EU stage across the range of practice areas, encompassing civil, criminal, family, company, consumer, private international and competition law, fundamental rights and intellectual property law, to name but a few. Examples of issues covered include legal aid in cross-border civil cases; mediation; ADR; collective redress; the European Arrest Warrant; maintenance; Consumer Rights, services and establishment; money laundering; and the creation of an EU patent.  Throughout this time, European contract law has remained a priority for the Bar.

What does the office actually do?

It monitors EU developments affecting the substance of the practice of barristers, their working and regulatory environment, and advises and reports to the Bar Council, in particular through its European Committee, other relevant committees and SBAs.  It advises on the need for, and then coordinates the Bar’s response to such EU developments, and the follow-up with relevant EU and national institutions.

It develops and maintains relationships with officials in European and other key institutions in pursuit of these objectives, for example by securing invitations for the Bar to participate in institution-led hearings, conferences and expert-groups. This networking is enhanced by the annual visits of the Chairman of the Bar to Brussels, orchestrated by  the Brussels Office.

It liaises with representatives of other Bars, organisations and stakeholders in Brussels to exchange views and coordinate activities where appropriate.  It produces the regular newsletter, “Brussels News” for subscribing members of the Bar, a summary of which appears in alternate editions of the Professional Updates section of this magazine.

What are its current priorities?

In the criminal field, we are tracking an EU proposal on legal advice and assistance for suspects and defendants; and following up a recent consultation on detention. Mindful of the pressure that the criminal Bar faces at home, we are also preparing for a 2012 proposal on cross-border legal aid in criminal cases. The Commission is seeking proposals for projects in the criminal and civil justice fields that it will co-finance, and the office is advising SBAs who may wish to apply. Here there is an overlap with new EU plans to ensure that the legal profession is given specific training in EU law. The office is also tracking a proposal for a cross-border injunction to freeze debtors’ assets; various company law initiatives and long-standing negotiations on private international law instruments on succession and civil and commercial contracts. The EU institutions are focussing anew on professional practice issues, including reserved activities; qualifications; the right to establishment and services; and business structures. On all these issues the office will advise and assist the Bar going forward.

A new European Sales Law

An EU file attracting great interest from consumer, business and legal communities alike is European Contract law.

After more than 10 years of work at EU level, to which the Bar strived to contribute in a positive manner, the Commission, in mid-October, adopted a proposal for a “European Sales Law”, purportedly creating an autonomous, optional contract law regime. The oft-stated primary objective is to increase both consumer and SME willingness to trade cross-border. This objective is, of course, laudable, especially in the current economic climate.

However, the Commission has failed to make the case that it is variations in contract law that are causing any lack of cross-border trade. Or to put it another way, how many consumers actually read the small print? Rather, the evidence, and common sense, suggest that issues such as language; concerns about delivery and costs thereof; about remedies if things go wrong; security of payment; lack of broadband penetration in certain territories; unsuitability of the product for export - are the real deterrents.

Notwithstanding the lack of substantiated independent evidence, we now have a Commission proposal for a European optional sales law. For it to work in practice, it should be truly optional; simple and easy to understand and apply; provide legal certainty and flexibility; and save business both time and money. It needs to provide the right level of consumer protection to attract consumers, and not to deter business.

The October 2011 proposal fails on every count. Many key stakeholders across the EU have reservations about the scheme. Significantly, the European bodies representing the target beneficiaries, i.e. consumers and small businesses, are vociferous in their opposition to the Commission’s plans and this proposal. The Brussels office is advising and coordinating the Bar’s response; liaising with other stakeholders and inputting our views at national, international and EU level, with a view to minimising the damage that this proposal could wreak, were it to be adopted in anything like its current form - and worse, form a template for other more far-reaching measures.

Evanna Fruithof, Consultant Director