EU life goes on regardless – and at a pace

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I know bigger issues are being discussed in the EU, particularly in relation to the UK’s place in it. But that doesn’t stop important lawyer-related topics making progress at the same time. This week’s blog is the ultimate seasonal treat – like a plum pudding or Christmas stocking, it is packed full of rich goodies, which in normal times would be consumed one-by-one, but which have to be crammed into a single package now to ensure that you are kept fully up-to-date before the new year.

For amusement value, I start with patents. The current Polish EU Presidency, which terminates at the end of this year (to be followed by Denmark), had plans to celebrate the ratification of the intergovernmental agreement on an enhanced cooperation for the establishment of a future European unified patent at an official commemoration in Warsaw’s Royal Palace on 22 December. But now the caterers may be being put on hold. All the substantial issues had been more or less settled by the institutions after nearly 30 years of negotiation (council document 17580/11 is the latest, but not yet available on-line). However, they were caught out by something which often proves tricky in EU negotiations – where would the headquarters of the future European patent litigation system be based? London and Munich had been suggested by their respective member states, but the EU Council submitted Paris. The chosen city is supposed to reflect a balanced approach towards the application of intellectual property rights. Munich apparently represents a liberal approach, while London is viewed as a literal applier of patent law. Paris is believed to be mid-way between the two. The Council of Bars and Law Societies of Europe’s working group on the subject is glad of the delay, because it sees a number of large substantive issues as remaining unresolved.

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The question of money laundering is again urgent. The European Commission is currently carrying out an impact assessment on the Third Money Laundering Directive, expected to be completed in spring 2012, and following that it aims to present a new legislative proposal between September and December 2012. The commission organised a stakeholders meeting on 9 December in Brussels on the revision of the third directive. We know that the commission is concerned about the differing reporting rates in the member states – thousands in the UK, but in single figures in others. We also know that they are concerned as to whether disciplinary sanctions and bar filters (where the reporting goes through the bar) are effective. At the same time, and in a pincer movement, the Financial Action Task Force (FATF), which is behind much of the money laundering legislation at an international level, is nearing the completion of its review of its recommendations. The FATF organised a consultative meeting in Milan on 5-6 December to discuss the proposed revisions to the FATF recommendations. The legal professions did not come away feeling that their views would make much difference, especially given that decisions will be taken by February of next year.

The CCBE was co-organiser of its own conference last week, in conjunction with the Polish EU Presidency, the European Commission and the European Academy of Law (ERA). The subject was criminal legal aid. Of course, the lawyers, judges and academics were all in favour of generous provisions, but the governments which will provide the funding were rather quiet. This topic will come up again soon as the commission prepares for the measure on the right to legal aid in criminal proceedings, due now in 2013 as part of the minimum EU procedural safeguards. It is already being raised in conjunction with the draft measure on the right to a lawyer, which is making its way through the legislative process, with some member states arguing that it is impossible to give a theoretical right to a suspect or defendant to a lawyer’s services without knowing by how much that right will have to be supported by public funding. Others see that argument as merely a delaying mechanism.

Finally, the European Court of Justice has just introduced its new e-Curia system of electronic exchange of procedural documents. This is among the first of the cross-border electronic procedures to be introduced. I have written before about the e-CODEX project, which is trying something more ambitious – namely, to join up all the current national e-justice and electronic filing systems. The Court of Justice’s system began to operate on 21 November, and there is currently a consultation on consequent changes to the General Court’s practice directions.

I promised you a rich diet. Don’t eat it all up at once!

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs

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