EU

THE European Council meeting in December 2008, returned to the issue of the ratification of the Lisbon Treaty, and agreed concessions, conditional upon Ireland securing ratification during 2009. These include allowing each Member State to retain a Commissioner, and guaranteeing that the Treaty will not interfere with Member States’ competence on tax matters, nor on security and defence, nor, specifically, will it interfere with Irish neutrality. As of the time of reading, Ireland should be the only Member States not yet to have ratified the Treaty. 

The Bar is cooperating with other interested bodies at both national and EU level to debate the implications and respond to the Commission’s 2008 proposal for an EU consumer rights directive, a horizontal measure codifying and updating 4 existing EU consumer protection directives and replacing minimum harmonisation with targeted maximum harmonisation. See: http://register.consilium.europa.eu/pdf/en/08/st14/st14183.en08.pdf and http://register.consilium.europa.eu/pdf/en/08/st14/st14183.en08.pdf 

In December, the European Parliament adopted a resolution calling on the Commission to issue a proposal on the recognition of authentic acts as defined in the ECJ case law. The legal profession was lobbying for something wider in scope, offering the same status to documents of equivalent legal effect under their national laws. The Commission will issue a Green Paper before the end of 2009, and has indicted that that consultation would cover “authentic acts and possibly other instruments”. 

At the end of 2008, the Council definitively adopted 5 important Framework Decisions, all long-standing proposals, and some of which
have been in the works for several years: 

• on combating racism and xenophobia;  
• on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters;  
• on mutual recognition in probation matters;  
• amending the definition of terrorism to include 3 new offences; and 
• on mutual recognition of judgments in criminal matters. 

Member States have 2 or 3 years, as defined in the specific FD, to comply. 

The Commission is making no secret of the fact that it intends to re-issue its proposal for a Framework Decision on minimum procedural safeguards for suspects and defendants in criminal cases. The Swedish Presidency of the Council (second half of 2009) is saying that it will try hard to broker Council agreement. 

The infamous Brussels I regulation on jurisdiction in contractual matters is overdue for its 5-year review. The Commission is expected to issue a consultation paper on the subject in late Spring 2009. The European Parliament’s Legal Affairs committee organised in mid- January, a hearing in anticipation of the review at which Alexander Layton QC spoke on behalf of the Bar. The hearing focussed on the recent, controversial, case-law of the Court of Justice; and covered topics including party autonomy; choice of court clauses; lis pendens; arbitration agreements; “torpedo” actions; anti-suit injunctions and forum non conveniens 

The Council has adopted a Decision approving the conclusion of a new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, bringing the rules of the Lugano Convention into line with those of Regulation (EC) No 44/2001 (Brussels I) in order to achieve the same level of circulation of judgments between the EU Member States and the EFTA States concerned. 

At the end of 2008, the JHA Council adopted a report on the Common Frame of Reference for European contract law (“CFR”), reiterating its April 2008 position that the CFR would be a non-binding legal instrument, shaped as a set of guidelines to be used by lawmakers at Community level, on a voluntary basis, as a common source of inspiration or reference in the lawmaking process. See:
http://register.consilium.europa.eu/pdf/en/08/st15/st15306.en08.pdf
The European Commission is expected to issue a White Paper in 2009 setting out its plans, including what it is keeping of the Academic CFR, finalised in 2008. 

Towards the end of 2008, the Commission’s years of preparatory work culminated in its issuing a Green Paper on Consumer Collective redress. The deadline for responses is 1 March 2009. The Bar is responding. See: http://ec.europa.eu/consumers/redress_cons/greenpaper_en.pdf 

There is a clear overlap with aspects of the work flowing from the Commission’s April 2008 White Paper on damages in antitrust cases. Despite the push from the EP to advance the two together, the Commission may yet issue a proposal on collective redress limited to the antitrust field in the first half of this year. 

The EU has adopted a world-leading Climate and Energy Package. The package of measures imposes legally binding targets to cut greenhouse gas emissions by 20%; to establish a 20% share for renewable energy; and to improve energy efficiency by 20%, all by 2020. There are also agreed revisions to the emissions trading system; the distribution of the reduction effort outside of the emissions trading system; a legal framework for environmentally safe carbon capture and storage (CCS); and on the related proposals on CO2 emissions from cars and on fuel quality. 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@barcouncil.be