EU

The Commission should have adopted its much anticipated proposal on jurisdiction and applicable law, etc, in this complex field, by the time of reading. If so, the UK has 3 months to decide whether to opt in to the proposal. The Chancery Bar will comment. 

• Council framework decision on the organisation and content of the exchange of information extracted from criminal records between Member States; and  
• Council Framework Decision on “in absentia judgments”, amending 5 existing decisions, including the EAW so as to enhance procedural rights. 

By the time you read this, the European Parliament should have adopted further resolutions in support of the Commission’s “Think Small first” campaign to simplify the operating environment for SMEs, including the proposal creating the European Private Company statute; and an own-initiative recommendation requesting the Commission to issue a proposal to simplify the process of transferring a company seat 

The Commission would like to re-issue its previously aborted proposal for a Framework Decision on minimum procedural safeguards for suspects and defendants in criminal matters. However, a more piecemeal approach may be all that the Council will entertain – possibly an action plan, with individual elements of the original proposal taken forward one-at-a-time. Arguably better than nothing, but hardly the balance to e.g. the European Arrest warrant, that defence lawyers seek. 

January 2009 saw the issue of the long-awaited Academic Common Frame of Reference (“ACFR”) (replacing the Draft CFR which came out this time last year). It is available on the Commission’s CIRCA database. The Commission is currently undertaking a pruning exercise to produce a “practical” version, on which there will be a White Paper consultation before the end of the year. The Bar will respond. 

Having considered the matter carefully, the Bar Council has taken the decision, in the interests of its members and of transparency, to register on the voluntary register of interest representatives of the European Commission. Its registration should cover the activities of members of the Bar attending events etc in Brussels on the Bar Council’s behalf. See: http://ec.europa.eu/transparency/index_en.htm 

Newly-adopted criminal law measures, and a little more detail on others previously reported (to access the texts, go to http://eur-lex.europa.eu/JOIndex.do?ihmlang=en and enter the OJ reference in the search engine): 

• Council Framework Decision 2008/841/JHA (OJ L300 of 11/11/2008) on the fight against organized crime sets out a
  common definition of organized crime, and requires Member States to punish it.  
• Council Framework Decision 2008/913/JHA (OJ L 328 of 6/12/08) on racism and xenophobia, which renders criminal, public acts designed to incite violence or hatred, or trivializing genocide and similar atrocities.  
• Council Framework Decision 2008/919/JHA (OJ L330 of 09/12/08) amending FD Decision 2002/475/JHA on combating terrorism, so as to include 3 new offences: 

• public provocation to commit a terrorist offence; 
• recruitment for terrorism; and 
• training for terrorism.  

• Council Framework Decision 2008/977/JHA (OJ L 350 of 30/12/08 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters 
it lays down rules on the exchange of personal data; sets minimum common standards on the confidentiality and security of the processing; on liability, and on the obligation to lay down penalties for unlawful use.

Council Framework Decision 2008/978JHA (OJ L 350 of30/12/08), creating the European Evidence Warrant for the purpose of obtaining existing objects, documents and data for use in proceedings in criminal matters from another Member State within a short time frame.

Council Framework Decision 2008/909/JHA (OJ L 327 of 05/12/08) on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the EU.

Council Framework Decision 2008/947/JHA (OJ L 337 of 16/12/08) on the application of the principle of mutual recognition to judgments and probation decisions; provides for the supervision of such alternative sanctions, in cases where e.g. offenders do not live in the State of conviction.

The European Commission is conducting a public consultation on the difficulties foundations face when operating cross-border and the possible creation of European Foundation Statute to deal with those, including looking at how such a Statute might affect donors' and founders' attitudes (there being tax and other implications). The deadline for responses is 15 May 2009. For all relevant documentation,
go to: http://ec.europa.eu/internal_market/company/eufoundation/index_en.htm 

The Rome II regulation on applicable law in non-contractual obligations, definitively adopted in July 2007, entered into force on 11 January 2009. The Ministry of Justice has recently issued guidance on its application: 

http://www.justice.gov.uk/publications/guidance-rome-ii-non-contractual.htm 

Directive 2008/99/EC, whereby criminal sanctions can be applied for breach of environmental measures (Official Journal L 328 of 06/12/08 ), entered into force on 26 December 2008, and must be implemented into Member States’ law by the end of 2010.