EU

The Commission issued a new handbook at the end of January:
http://ec.europa.eu/competition/state_aid/studies_reports/sme_handbook.pdf 

SPEAKING in Vienna, where he is attending the European Bar Presidents Conference, the Chairman of the Bar, Desmond Browne QC, warned of the dangers of the ever increasing quantity of advocacy work being handled in-house by the Crown Prosecution Service. In drawing a distinction between the English adversarial and the continental inquisitorial systems of justice, he pointed out that in England there was nothing which corresponded to the District Attorney or the juge d’instruction. 

Desmond Browne QC said: 

“Until recently, it was rare in England to find the conduct of a prosecution in the hands of barristers dedicated to that type of work. Until now barristers have prosecuted one week, and defended the next. This dual role has ensured the admired independence of the English Bar with its dedication to the cabrank rule. 

On 10 February, the Grand Chamber of the ECJ delivered judgment on one of the cases discussed, above, the reference for a preliminary ruling by the House of Lords in Case 185/07 Allianz SpA, Generali Assicurazioni Generali SpA, v West Tankers Inc. See:
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en 

The responsible committee of the European Parliament is, as I write, debating its draft report on the Commission’s March 2008 Green paper aimed at identifying possible EU measures to improve the transparency of debtors' assets and the right of creditors to obtain information. The Bar is hoping it will support (research into) the possible introduction of EU provisional measures, in particular to deal with recalcitrant debtors. 

In early March, the Competitiveness Council adopted a Key issues paper for 2009 in the area of the internal market, highlighting the urgency of simplifying the regulatory environment for business, in particular SMEs as just one of the areas of focus for EU activity to help to alleviate the current financial crisis. See: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/106513.pdf 

In early March, the Bar Council submitted a written response to the Commission’s November 2008 Green Paper on Consumer Collective redress. The Bar expressed no preference either way on the need for, or desirability of, developing collective redress mechanisms at EU level, but did indicate which features it would favour and which not, were that to be proposed. 

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 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.