EU

The two regulations recently adopted, establishing procedures for the negotiation, conclusion and variation of bi-lateral agreements between Member States and third countries, on respectively, applicable law in contractual and non-contractual obligations; and on jurisdiction, recognition and enforcement of judgments and decisions in family law areas, were both published in the official journal (OJ L200 of 31.07.09) and entered into force in August. 

In July, the House of Lords EU Committee adopted its Report on this October 2008 proposal. The Bar Council had given evidence to its preceding inquiry. For the report, see: http://www.publications.parliament.uk/pa/ld200809/ldselect/ldeucom/126/126i.pdf and for
the supporting evidence, see: http://www.publications.parliament.uk/pa/ld200809/ldselect/ldeucom/126/126ii.pdf 

The report has been quite well received in Brussels, despite being rather critical of the current Commission proposal in places. It takes a similar line to the Bar Council on the fundamental issue of the level of harmonisation, urging that rather than apply maximum harmonisation across the board, the Commission should aim for what it terms “differentiated harmonisation”. 

The Commission has produced a handbook of EU rules applicable to merger control, as at 14 July 2009. 

See: http://ec.europa.eu/competition/mergers/legislation/merger_compilation.pdf 

The Swedish Council Presidency is hosting what could prove to be a timely and politically important conference on this subject on 22 October 2009, reviving the tradition started under the UK Presidency in late 2005. 

See http://www.se2009.eu/en/meetings_news/2009/10/22/a_common_frame_of_reference_for_european_contract_law 

The 2009 proposal for a Framework Decision (Procedure reference 2009 0802/CNS) to resolve jurisdictional conflicts in criminal cases, limited in scope to situations where the same person(s) are subject to parallel proceedings in different Member States in respect of the same facts (which might infringe the ne bus in idem principle), looks set to be agreed upon by the EP and the Council in time to allow it to be adopted at the JHA Council meeting on 23 October 2009. 

A date for your diary: Chalfen Memorial Lecture, 6 November 2009, 14h00 to 16h00 at the British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London, WC1B 5JP. Jonathan Faull, Director General of the European Commission's JLS Department is the guest speaker, and the event will be chaired by Stephen Walzer, Member of the UK Competition Commission. For further details, see www.biicl.org or Email: eventsregistration@biicl.org, Telephone: 020 7862 5151. 

Work is underway in the new Parliament to progress the Commission’s 2009 proposal for a directive to combat late payments in commercial transactions between businesses, or between businesses and public authorities. Once adopted, it will repeal and replace Directive 2000/35/EC which over time, has been found to be inadequate. 

See: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0126:FIN:EN:PDF 

The EU institutions are engaged in strenuous efforts to create a Unified EU Patent Litigation system, and within that, to secure an Agreement on the European and Community Patents Court and Draft Statute. To that end, the Commission has produced a working document setting out draft rules of procedure, limited at this stage to procedural rules before the Court of First Instance. 

See: http://register.consilium.europa.eu/pdf/en/09/st11/st11813.en09.pdf The relevant Council working group is to meet repeatedly in the coming weeks, under the enthusiastic watch of the Swedish Council Presidency, to try to reach agreement. 

The Commission is hosting the above-titled 1-day conference in Brussels on 21 October 2009. The draft agenda and details for registration etc are available at: http://ec.europa.eu/competition/consumers/events/2009/index.html 

THE Crown Prosecution Service’s policy of taking more advocacy in-house will cost the taxpayer millions, according to an independent report. 

The consultants, Europe Economics, in a report commissioned by the Bar Council, reveal that the CPS’s claim to have saved £17.1m in 2007-2008 by using in-house advocates does not stand up to proper scrutiny. 

According to Europe Economics, the CPS’s calculations are flawed and do not conform to Government accounting standards – the calculations exclude much of the true costs. Europe Economics states: 

“The CPS ... compare the short-run marginal costs of deploying in-house advocates with the fees of self-employed barristers. This is plainly wrong, both economically and as a basis for policy-making. Barristers’ fees necessarily include an allowance for long-run costs and fixed overheads; the CPS incur such costs too but ignore them. Such skewed comparisons will always favour CPS advocates over the self-employed Bar, and will encourage the CPS to acquire excessive numbers of advocates and excessive accommodation and overhead costs to support them.” The consultants observe: “All in all, the CPS’s approach is so profoundly flawed that it should not be relied on.” 

Further deficiencies in the CPS’s analysis include: 

• an inadequate allowance of only 10.5% of salary to cover direct overheads, including training, recruitment, travel and subsistence 
• an under-estimate of CPS overheads, which should include £54m spent on ‘administration costs on HQ and central services’ and £27m spent on ‘other administration costs’ 
• a failure to demonstrate the savings it claims to have made to the standards normally required by Government 
• a failure to conduct a proper impact assessment by taking account of the true costs of overheads and administration 
• failing to establish a clear link between the CPS’s quality commitment and its claimed savings 

The Bar Council and the Criminal Bar Association have today sent the report to the cross-party Commons Justice Select Committee, the Attorney General Baroness Scotland of Asthal QC, Justice Secretary the Rt Hon Jack Straw MP, and the Director of Public Prosecutions Keir Starmer QC. 

Criminal Bar Association Chairman Peter Lodder QC told the Justice Select Committee on 3 February 2009 that the CPS was failing to act transparently over its claims to be making savings through the use of in-house counsel. 

Peter Lodder QC commented: 

“I have sent the Europe Economics report to Sir Alan Beith MP, the Chairman of the Justice Select Committee. It will provide his committee with the detailed analysis necessary for a proper evaluation of the efficacy of the CPS’s advocacy services.” Desmond Browne QC, the Chairman of the Bar, added: “To claim that taking advocacy in-house will save money without taking account of the full cost smacks of Alice in Wonderland accounting. 

We have been given a variety of figures regarding the savings that the CPS claims to be making from the increased use of inhouse counsel. The one thing that they have in common is the failure to account for all the costs. Simply focusing on short term marginal cost is not enough. 

The economists’ report makes clear the utter poverty of the CPS’s financial analysis and shows that, far from saving money, the increased use of in-counsel will cost taxpayers many millions.”