Language wars – a preliminary skirmish on patents
Jonathan Goldsmith
Friday, 27 August 2010

The patent blogs – yes, there are such things – have been buzzing this week with the opinion given by the advocates-general of the Court of Justice of the European Union (ECJ) on the legality of the proposed scheme to make the patent process more competitive in the EU. And thank goodness for the blogosphere, because without it the opinion might have remained hidden.
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It was published on 2 July yet not put on the ECJ website, and only unearthed by the blogs in the past week. As they themselves ask, why was the opinion not openly published?

I wrote on this topic in July but it is worth revisiting. In brief, to make the EU more competitive, and to bring down the costs of filing a patent (10 times higher in the EU than in the US, mostly as a result of translation), a proposal has been promoted to limit the future translation of patents to three languages: English, French and German. Now the advocates-general have given their opinion on the principles of such a scheme in advance of the formal ECJ judgment, which is expected later this year.

In my July piece, I concentrated on the fact that the proposed scheme made some EU languages – in this case, English, French and German – more equal than others. The relevant part of the advocates-general opinion as it relates to languages is: ‘Consequently, a company may be summoned in law in a language in whose choice neither its country of origin nor the country where it carries out its commercial activities has participated. In the absence of any provision in the draft agreement allowing the central division to depart from the rule of the language of the patent or allowing the defendant to obtain translations of procedural documents, this linguistic system appears to be unacceptable with regard to observance of the rights of defence.’

The new language scheme is ruled out, therefore, because it limits the rights of defence. Indeed, the whole scheme is ruled out as being incompatible with the treaties. But I want to concentrate here on the language issue alone. The point made about rights of defence is understandable, and of course the ECJ must concentrate on the law. But the EU is faced with a stark choice between two opposing principles. On the one hand, there is multiculturalism, which says that for everyone to feel at home in the EU we should be able to speak our own language. That is undeniable. On the other hand, there is efficiency (see the 10 times higher cost of filing a patent, mostly because of translation) which says that, if EU business is to succeed in a competitive global market, language choices have to be made.

The EU is built on many fissures. That is almost its raison d’être, to contain the fissures that exist in Europe and prevent them from growing into serious conflict. None of the current divisions looks remotely likely to lead to war, and we are familiar with many of them: the north-south differences, for instance, or the varieties in legal systems. Mostly they are gently accommodated. But one particular problem keeps nagging and threatening to become more ugly. That is the issue of what to do about languages. So far, the EU’s response has been to throw money at them – around €1 billion of taxpayers’ money is used annually in ensuring that documents and meetings are translated and interpreted.

But money goes only so far, and there are problems that it cannot solve. One is that it cannot change global trends, such as what languages – other than their own – young people choose to study. For instance, the GCSE results published this week show a continuing decline in the numbers studying the principal European languages. The UK is by no means alone in showing that the range of languages students wish to study is changing and narrowing, which causes a problem for the EU institutions trying to recruit sufficient people to keep the principle of multiculturalism alive, at least at official level. Even now there are many meetings where the majority of languages are not offered because of lack of resources, and so brutal choices are made: effectively, the languages spoken only in smaller countries are ignored.

We are all taxpayers. We are all voters. The theory is that we make the choices for our political leaders to follow, whether at national or EU level. So which is it to be: right of defence in your own language, or competitiveness? I suspect that this is a question which will be posed more often and more sharply in the coming years, and one or other principle is going to have to give.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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The coming regulatory revolution
Jonathan Goldsmith
Friday, 20 August 2010

The European Commission is concerned at the take-up of electronic commerce in the EU.
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Despite so many people buying flights, books and groceries online, e-commerce makes up less than 2% of EU total retail trade. They want to increase that figure by removing obstacles to online purchasing. To this end, they have just published a consultation document to find out how performance can be improved.

You might think that this has nothing to do with lawyers. But they have the legal profession in their sights. One of the prime audiences for this consultation is ‘the regulated professions, in particular pharmacists, lawyers and magistrates’.

The questions related to the legal profession make clear where they intend to develop policies for the future. They ask consumers and others (in the jargon of the 2001 E-commerce Directive): What information society services provided by the regulated professions are you aware of or do you have access to? Are you aware of which types of commercial communication practices are undertaken by the regulated professions (communication on fees, on specialisms, etc) in one or more member states or at European level? For which regulated professions? Are you aware of codes of conduct covering on-line commercial communications for certain regulated professions in one or more member state(s)? What are, in your opinion, the obstacles to the development of codes of conduct for online commercial communications for regulated professions at European level?

As its readers know, the Gazette is full of articles about the impact of technology on legal practice. But, curiously, our profession has suffered only surface changes to its traditional ways of practice. We all use computers and smartphones, but the basic mode of delivery is more or less as it always has been. It seems that now is the moment when the profession is on the cusp of great change. At any rate, the Commission is keen to push us over the edge.

The questions aimed at lawyers are targeted as much at their regulators. This leads to my main point, which arises out of the Commission consultation. Regulators have a duty to look at their current models and see whether they fit the future coming so swiftly down the tracks. In other words, does their current vision for the future practice of law encompass some of the technological changes, which, for better or worse, are about to transform us? Here are some of them:

  • As happened with manufacturing a generation ago, jobs in the legal services sector are being exported eastwards, through greater mechanisation and cheaper labour – otherwise known as outsourcing. When a car is made in the east and then bought in the UK, there are not the same problems as when a legal service produced in the east is delivered here (confidentiality, client consent, conflicts of interest, competence and so on);
  • As we see in the fuss over lawyer-rating sites, access to consumer-driven information – think Tripadvisor in the travel sector - is about to hit us, which will empower consumers in their choice of lawyer. Should free speech trump everything other than the libel laws, or should there be some regulatory structure (impossible to implement on the internet)?
  • The economic model of an office-based law firm will doubtless be undermined by that of the virtual law firm: website, e-mail, proof of electronic identity, cloud computing and video-conferencing will allow lawyers to stay at home and undercut the accommodation expenses of those stuck in offices. Again there are many regulatory challenges, if only because the lawyer can be situated anywhere in the world without an office or physical files that can be investigated by a regulatory visit.

I am aware that the future does not always turn out as we think. Nor does all of this follow from the Commission’s much more modest encouragement of the profession to use online legal services more often. But we see in our daily lives how the accelerating pace of the use of technology is shifting the ground from under our feet. It always takes a few decades for big changes to reach the legal profession. It seems that they are now about to hit us, and regulators should be prepared. A new vision is required from all of us.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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Thoughts from the American Bar Association's annual meeting
Jonathan Goldsmith
Friday, 13 August 2010

I was at the American Bar Association’s annual meeting in San Francisco last week. Here are some conclusions.
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Their Section of International Law gave its Human Rights Award to the Chinese human rights lawyer, Gao Zhisheng. I wrote about him some months ago under the heading ‘Where is Gao Zhisheng?’, but that title is still applicable. Although the calls from his supporters led to Gao Zhisheng reappearing for a short while earlier this year, he has now disappeared again, and no one knows where he is. It would take a heart of stone not to have been moved by the sight of his very young daughter, in her tiny bolero jacket and uncertain heels, accepting the award on his behalf, but being too overcome by emotion to be able to say a single word to the microphone. I only hope that the cries of ‘Where is Gao Zhisheng?’ will once again rise to shame the Chinese government, and so force them to set him free. Who will orchestrate this chorus on our collective behalf?

I gave evidence to the American Bar’s 2020 Commission to tell them about developments in Europe which touch on their investigation into the effects of globalisation and technology. I predicted that the work currently being undertaken in the EU to resolve the question of lawyers’ electronic identity crossing borders would become a standard, which might in due course become the worldwide template. (The last time I wrote about this I was inundated with complaints from supporters of NO2ID, but I am hoping that their monitoring systems will not pick up this blog if I do not actually put the words i……y and c..d together in a sentence.) I also told them that the radical cross-border movement provisions for lawyers in the EU work very well, and so they should not listen to the doomsayers telling them that civilisation will end if they let more foreign lawyers into the US. But the topic in which they were most interested was the outcome of the Akzo Nobel case. They cannot understand why an in-house counsel should not be given legal professional privilege. ‘What has the independence of the lawyer got to do with it?’ I was asked – ‘Surely it is all about encouraging client candour.’ But I pointed out that in the US there are also rules as to which lawyers acquire the privilege and which do not. For instance, there is a well-known case being litigated in the US now where an in-house counsel for Gucci has been deprived of privilege because he was not registered with his bar: that happens to be one of their rules (whereas Akzo Nobel’s in-house counsel was a member of the bar, but that has not so far saved him here in the EU – the final decision is due on 14 September).

At the opening ceremony, the outgoing president of the American Bar gave a speech in which she illustrated our love for freedom through the metaphor of friends on a Facebook page. It was interesting that Facebook has come so far as to be used in that context – but unfortunately the metaphor soon collapsed under the weight of detail placed on it. The keynote speaker was David Boies, who is one of the US’s leading lawyers. He appeared for Al Gore in Gore v Bush, which he lost – but he was recently a leader of the team that won the fight to oppose Proposition 8, which outlawed gay marriage in California. When he mentioned the case, there were whoops and applause from the audience, apart from the elderly and friendly couple next to me, who sat on their hands. He gave an impressive speech on the rule of law (what else these days?) and the shortcomings of the American justice system, but the most impressive part of it was that he stood centre stage without a note, and spoke in perfect sentences and paragraphs for more than 40 minutes.

We had an interesting meeting with the Section of Science and Technology. We are usually way behind the US in the use of technology, but it was heartening to note that they are also struggling with issues like virtual law firms, outsourcing, lawyer-rating sites, electronic identity and cloud computing, and are no nearer magical answers than we are.

San Francisco was its usual chilly, foggy self. During our stay, a German tourist was shot by a stray bullet from a teenage gunfight, leading to a car chase that ended outside our hotel. The hills were steep, the views were beautiful, the food was often good – but I am happy to be back in Brussels.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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Legal professional privilege is under attack again
Jonathan Goldsmith
Friday, 6 August 2010

I have a message for democratic governments everywhere (please forgive the self-importance): stop interfering with legal professional privilege. I think that they used to, by and large, leave alone this cornerstone of the definition of the legal profession – and, of course, cornerstone of a citizen’s fundamental rights, which is more important. But, regrettably, one of the signs of modern government is that, after a major crisis, the response involves the invasion by governmental authorities of what I shall from now on call by its European name of professional secrecy.
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It happened after 9/11 with the sudden passage of the anti-money laundering legislation, which required lawyers to report on suspicious transactions – the consequences of which we are all living with today. There have been court cases, much protesting and hand-wringing, and it is still impossible for any governmental authority to put its hand on its heart and say that the reporting of suspicious transactions by lawyers has made any significant difference to the serious fight against money-laundering.

Now it is the turn of the response to the economic crisis. In the European institutions’ struggle to avoid a repeat of recent market failures, new authorities are being given sweeping powers, including sometimes the power to seize documents which are subject to professional secrecy. The last time this happened during the aftermath of the economic crisis, we at the CCBE lobbied, and – against a tide of political disinterest – managed to secure some modest amendments which seemed to give lawyers, in other words their clients, protection. Now it has happened again. The commission has recently announced an amendment to the EU rules on credit rating agencies (CRAs).

This is how the commission describes it: ‘As rating services are not linked to a particular territory and the ratings issued by a CRA can be used by financial institutions all around Europe, the commission is proposing a more centralised system for supervision of credit rating agencies at EU level. Heads of state and government had called the commission to come forward with proposals on this in June 2009. Under the proposed changes, the new European supervisory authority – the European Securities and Markets Authority (ESMA, see IP/09/1347) – would be entrusted with exclusive supervision powers over CRAs registered in the EU. This would include also the European subsidiaries of well-known CRAs such as Fitch, Moody's and Standard & Poor's.’

This ESMA’s proposed powers have no limitation in relation to professional secrecy, which means that clients – including CRAs – will not have the ordinary protections in their rights of defence that any citizen or other entity can expect. This is not acceptable, and no reasons are given for it. We are considering an amendment to say that: ‘When exercising its supervisory and investigatory powers, the European Securities and Market Authority should conduct its proceedings with full respect to the rights of defence of the persons and credit rating agencies which are subject to those proceedings and professional secrecy and legal professional privilege applicable in the home member state of such persons and credit rating agencies should not be affected.'

It is worth considering why it has become a recent phenomenon that governments go after professional secrecy like this. I think it is to do with the change in nature of our societies. It is a cliché to say that we have become information-based societies, and both terrorist financing and credit ratings depend on data, often quite a lot of data. Lawyers are gatekeepers (to use the American terminology) to that data – not only lawyers, of course, but lawyers are a common factor. We were joined with institutions like banks and casinos in money laundering, and with finance houses in credit ratings.

If I am right in my assessment, then this is a state of affairs to which we must become used. The nature of the world has shifted, and so when the next emergency occurs, it is likely that governments will believe that they again need data to prevent a recurrence, and will pounce on the gatekeepers to that data – undoubtedly lawyers once more – to hand it over, regardless of professional secrecy. We should therefore develop a long-term strategy to defend this fundamental right, since we serve a wider purpose than that of assisting governments, noble as that often is. We serve the public interest, which is broader.

My message is – governments, stay out of this area, it needs to be safe from your sticky hands.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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Helping the criminal suspect: the letter of rights
Jonathan Goldsmith
Friday, 30 July 2010

I am in Colorado at the moment, and so you will forgive me if I again use cowboy metaphors to describe the latest actions of commissioner Reding. She has come riding down into the canyon (and there are plenty of those in Colorado), lassoed the horse rustling member states red-handed as they were trying to steal, and tied them up.
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I have mentioned before that the EU is introducing in piecemeal fashion new rights for suspects and defendants which will have to be implemented everywhere in the EU, the so-called minimum procedural rights. The right to interpretation and translation has just been passed, and has to be implemented into national law in 36 months. We had heard that the next basic right, the letter of rights, was being delayed because member states wanted it to apply to cross-border cases only, and not to national cases. That is the stealing that I just mentioned. It would have meant that a cross-border suspect would have received a letter of rights, but not a domestic suspect (assuming the country concerned did not already have a domestic letter of rights to hand out). It would have been absurd. But the draft legislation was published last week, and it turns out that commissioner Reding has had her way again. The letter of rights will have to be given to everyone.

The letter informs suspects of their rights on arrest – you know, after the sheriff has seized you and locked you up in the jailhouse. You might think that this is a pretty basic thing, and exists everywhere. But only 10 member states have a letter of rights, and in only one of those states does the letter inform suspects of their right to contact a lawyer after arrest. The letters of rights themselves vary from impenetrable recitals from the Code of Criminal Procedure to the two most acclaimed letters – that of Germany, which is translated into 48 languages, with the UK following with translations into 43 languages, including audio versions. In 20 member states, the right to remain silent is not communicated in writing at all, but only orally, and in two member states there is no statutory right to silence.

In the new draft directive, there is a model letter attached as an annex. It outlines four rights, as follows: ‘If you are arrested by the police you have the following rights: A to be informed of what offence you are suspected B to the assistance of a lawyer C to an interpreter and translation of documents, if you do not understand the language D to know for how long you can be detained.’ Regarding the assistance of a lawyer, the model letter says: ‘You have the right to speak to a lawyer before the police start questioning you – if you ask to speak to a lawyer, it does not make you look like you have done anything wrong. The police must help you to get in touch with a lawyer. The lawyer is independent from the police and will not reveal any information you give him without your consent. You have the right to speak with a lawyer in private, both at the police station and/or on the telephone. If you are not able to pay for a lawyer the police have to provide you with information about free or partially free legal assistance.’

You may wonder why it is necessary to have these new rights at all. First, there are articles 5 and 6 of the European Convention of Human Rights and the associated case law, which provide more or less the same rights. There is also the Charter of Fundamental Rights, turned finally into law by the Lisbon Treaty, where articles 6, 47 and 48 do the same thing. The big difference, though, is that the eventual implementation of the proposed new directive will enforce these rights for the first time in a harmonised way in national law, meaning that they can be enforced in national courts. This will save some of the time – years and years – that it takes to enforce similar actions in, for instance, the European Court of Human Rights after rights have been breached.

The member states say they are worried about costs. They are always worried about costs when it comes to defence rights, but never when it comes to additional benefits for the prosecution. That is true whether the complaint is about costs or anything else. For instance, the UK has taken the lead in opposing the minimum procedural rights for suspects and defendants – but has just recently signed up to something on the prosecution side which is optional, the European Investigation Order, which is supported by only a few member states, and will simplify cross-border police requests.

I am sure that there will be plenty of political infighting about the draft letter of rights legislation. But as citizens who might ourselves be arrested in another member state, we should gather on the side of the commissioner and yell out: ‘Yeehaw, charge!’

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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Lessons from a conference on a turbulent legal profession
Jonathan Goldsmith
Friday, 23 July 2010

I have just participated in a conference at Stanford University in California, called The Legal Profession in Times of Turbulence. It was attended by professors from leading American universities, with presentations of the highest quality. I have conclusions to draw of interest to us in Europe.
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First, I have noticed for some while, and this conference has confirmed, that US legal academics play a more central role in the development of legal professional policy than their counterparts in Europe. Here, the legal profession and its policy-makers on the one hand, and academia on the other, lead more separate lives. US academics participate in committees throughout the policy-making process in the American Bar Association. I know that, at the CCBE, we find that American academics study us and our policies to a greater degree than those working at our own European universities. An interesting question: does the regular inclusion of academics lead to better policy-making? (My answer, from my own experience in working on committees with academics, is definitely ‘yes’.)

Second, the word ‘international’ at the conference meant, almost exclusively, from an English-speaking country. So, there was a preponderance of US academics, which is not surprising given that it was taking place in the US. Then came the Australians, the British and a smattering from other English-speaking countries. There was one academic from Germany, one from the Netherlands, one from Japan – and maybe a couple of others that I missed. That is not international, and there is a consequence for thought and decision-making as a result. For instance, I speak below about outsourcing, but no one at the conference mentioned that outsourcing is an English-language phenomenon, and not relevant to lawyers conducting work in any other language.

Third, it was strange to have a conference discussing the legal profession and its practices with barely a practising lawyer there. I am aware that it was an academic conference, but the subjects under the microscope are hardly tiny insects living on the moon. It would have been good to have more practitioners present to tell us whether their experience confirmed the conclusions. Obviously, even in the US the two sectors lead rather separate lives.

Finally, the changes being discussed were almost exclusively those being undergone by 'big law'. I am perfectly aware that technology and globalisation affect the large law firms disproportionately, and that changes often start there and filter to the rest of the profession later. But you would hardly have known that most lawyers are down at the police station at midnight (is any outsourcing company or other third party threatening to take over that work?), or negotiating a local divorce. The working lives of lawyers in small firms need to be kept in mind; they form a majority of the profession.

The turbulence in the conference title referred to the changes we all know about which are affecting the role of lawyers. Maybe the most striking example occurred during a session on outsourcing. A representative (he was actually an English solicitor) of a large outsourcing firm with offices in Mumbai, New Delhi and Manila spoke of how the value of legal work is coming down. He said that there was no need for his firm to bid for high-value legal work. Indeed, it did not want to do so. It just had to wait at the bottom of the chain, as technology ensured that more and more legal work became a form of mechanical processing and so fell into its mouth at the bottom of the chain. Is that scary? For a full account of the outsourcing panel, read here (since another consequence of the conference taking place in these times is that various people have been blogging about it, including now me).

Developments in China and India were often mentioned. Their growing economic power is frightening the US (although walking through the impressive wealth and size of Stanford University campus made me wonder whether any other country could provide such facilities). There was also a discussion about whether we need to have a rule to resolve conflicts of ethical rules in cross-border practice (what the Americans call ‘choice of law’). A fresh draft of such a rule was prepared in advance by two speakers at the conference, and we were told that the New York Bar Association has also drafted a rule – both will be submitted to the American Bar’s Ethics 20/20 Commission. If Europe wants to have a say in this discussion, it will have to prepare its own arguments.

Congratulations to the organisers: this was a pudding of incredible richness. And I hope the few Europeans present will bring back lessons to improve our policy-making back home.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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Contract law: this summer’s essential beach reading from the EC
Jonathan Goldsmith
Friday, 16 July 2010

A sure sign of the beginning of the summer, as fixed as hot weather and crowded airports, is the publication by the European Commission of an important consultation document. They clear their desks before packing their bags, and woe to the rest of us who want to enjoy the summer. We have to spend the holiday months pondering deep European thoughts so as to have our responses ready for the Eurocrats’ return in September.
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The document just launched this year is a Green Paper on policy options for progress towards a European contract law for consumers and businesses. It is so important that the commission has extended the usual summer deadline to 31 January 2011, to be sure of the widest range of responses. This is the summer’s essential reading, which you should pack along with the suntan oil.

The commission lays out its case for contract law reform in a forthright way. In England and Wales, there is anxiety about reform because it might take money out of the hands of solicitors, given that English law is the default choice in the absence of an EU-wide option. So, it would be interesting for opponents to address the arguments put forward by the commission, as follows: ‘Differences between national contract laws may entail additional transaction costs and legal uncertainty for businesses and lead to a lack of consumer confidence in the internal market. Divergences in contract law rules may require businesses to adapt their contractual terms. Furthermore, national laws are rarely available in other European languages, which imply that market actors need to take advice from a lawyer who knows the laws of the legal system that they are proposing to choose. Partly for these reasons, consumers and businesses, in particular small and medium enterprises (SMEs) having limited resources, may be reluctant to engage in cross-border transactions… Consumers and businesses from small member states might be particularly disadvantaged.’

The Green Paper asks the most basic and thought-provoking questions about the future of a European contract law, under three headings: what should be the legal nature of the instrument of European contract law? What should be the scope of application of the instrument? What should be the material scope of the instrument?

Regarding the legal nature of the instrument, a number of policy options are considered, in descending order of shock to Eurosceptics (if you are a dyed-in-the wool Eurosceptic, pack your blood-pressure medication along with the Green Paper, to avoid claiming on your holiday insurance):

  • The publication on the web of (non-binding) model contract rules which could be used within the EU.
  • A (binding or non-binding) ‘toolbox’ for EU lawmakers when they adopt new legislation to ensure better and more coherent rules.
  • A Contract Law Recommendation that would call on EU member states to include a European contract law into their national legal systems, thereby partly following the model of the United States where all but one of the 50 states voluntarily adopted the Uniform Commercial Code.
  • An optional European contract law (or a ‘28th system’), which could be chosen freely by consumers and businesses in their contractual relations. This optional law would be an alternative to the existing national contract laws and would be available in all languages. It could apply in cross-border contracts only, or in both cross-border and domestic contracts.
  • Harmonisation of national contract laws by means of an EU Directive.
  • Full harmonisation of national contract laws by means of an EU regulation.
  • The creation of a full-fledged European Civil Code, replacing all national rules on contracts.

The UK MEP, Diana Wallis, herself a solicitor, has thrown her weight behind the contract law initiative, although not behind the last three most shocking options. She says: ‘It is very sad that certain English legal professionals and others, particularly in member states’ justice ministries, are not prepared to get behind the European contract law project at a time when we desperately need to strengthen Europe's internal market and economy. This is a discussion about an ‘option’, it is about choice; not harmonisation… it is about a second, Europe-wide option running on a voluntary basis alongside national law.’

So, forget your Stieg Larssons or Sophie Kinsellas. Take the Green Paper with you to the seaside, and answer the commission’s very interesting questions.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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EU language war sparked by patents proposal
Jonathan Goldsmith
Thursday, 8 July 2010

The other side of the coin of the EU’s welcome inclusiveness and multilingualism is that some things are made worse by it.
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Anyone attending EU meetings knows that language is the elephant problem in the room – everyone desperately wants each language to be equal to another, but, for a range of reasons completely beyond the control of ordinary people (former imperialism, current globalisation, the strength of economies) they are not. Normally, the institutions throw money at the problem, and by employing an army of translators and interpreters, it can be pretended that we are all equal after all.

Then along comes a question which cannot be solved so easily. The topic raising the awkward issues at this time is patents, and here is why. It is estimated that patent costs are 10 times higher in Europe than in the US: a European patent validated in 13 countries, for example, can cost up to €20,000, of which nearly €14,000 comes just from the translation costs, which makes it 10 times more expensive than a US patent, which comes in at around €1,850. To say that this discourages research, development and innovation, as the commission acknowledges, is the wildest understatement. It impacts particularly adversely on small and medium-sized enterprises, which cannot afford protection in all 27 member states because of the translation costs.

The European Commission has been trying to do something about it for 35 years, so that ‘innovators can protect their inventions at an affordable cost with a single patent covering the entire EU territory with minimum translation costs and without needing to validate that patent at a national level as they currently have to do’. One question which needed to be resolved was where the patent could be litigated, but that is settled by the council’s agreement of 4 December 2009 for a single EU patent court, on which the EU institutions are still awaiting an opinion from the European Court of Justice. But the second question is that of languages. That is where the fireworks begin.

On 1 July, the European Commission published a new proposal to limit the translation of the future EU patent to three languages: English, French and German. This must be the only, or nearly the only time (if you can think of another, please let me know) that the EU institutions have favoured particular languages, to the extent that another member state’s language will become the official text in a member state which does not speak that language. The patent would be issued in one of the three and would be published in that language, too, which would become the legally binding text. The publication would include translations of the claims – the section of the patent defining the scope of protection of the invention – into the other two official languages. No further translations into other languages would be required from the patent proprietor, except in the case of a legal dispute. Spain, for one, has been opposed to this language regime because it does not include Spanish, and it fears its national patent office will lose business as a result of the EU patent.

It is proposed that high-quality machine translations of patent applications and claims will be made available in all the official languages at no cost. These will be provided for information purposes and will not have legal effect. The commission is supporting the PLuTO project (Patent Language Translations Online), which aims to extend this system to all official EU languages. In addition, inventors from EU countries whose official language is not one of the three selected will be able to file their applications in their own language, with subsequent translation costs reimbursed. There is an unacknowledged problem here, though: machine translations, even high-quality ones, have not so far proved reliable, particularly when it comes to terms which have legal effect. For instance, we employ a human translator in our office who uses difficult legal terms day in and day out, and there are still regular problems about how a legal term translates into another language – and we use only two (English and French). But we should wish PLuTo good luck nevertheless.

The patent problem is becoming more urgent, because the EU is falling behind in research and development, which most people agree is the key to our own and our children’s economic future. According to a study carried out by the Bruegel Institute, the number of patent applications in China has risen from just over 50,000 to almost 300,000 between 2001 and 2008, more than in Europe (230,000 applications). So it is not a surprise that the commission is keen to make progress on this issue.

But we are not there yet: expect more language trouble ahead until there is final agreement. And before you say to yourself that other member states will just have to get used to it, try and imagine what it would be like if legal texts were available in the UK only in languages other than English.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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What about the European courts?
Jonathan Goldsmith
Friday, 2 July 2010

Courts have problems, like everyone else. In the UK, there will be much heat over the coming months over the closure programme announced by the government.
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The US is getting frothed up about the nomination of Elena Kagan to the Supreme Court. So, what about the European courts? Are they havens of peace, or is it just that we don’t hear about their problems? The answer is that the usual UK silence falls over anything European which is not about bent bananas. For instance, can you name the UK judges at the courts in Luxembourg? If you can – a medal! (Answers: Nicholas Forwood for the General Court, and Konrad Schiemann for the Court of Justice).

Before listing the problems, it is worth speaking of the disabilities under which the two courts labour, which makes them very different from our own. The European courts work in 23 languages, which can obviously slow matters down and produce many complications. You can file your case in any of the 23 languages. At the Court of Justice, in direct actions, the language used in the application will then be the ‘language of the case', that is to say the language in which the proceedings will be conducted. With references for preliminary rulings, the language of the case is that of the national court which made the reference to the Court of Justice. Oral proceedings at hearings are interpreted simultaneously, as required, into the various official languages of the EU. And the judges deliberate, without interpreters, in a common language, which is traditionally French. Again, unlike national courts, since each member state has the right to appoint a judge, all judges are from different member states with different legal traditions. Each chamber is composed, therefore, of a number of judges with very different backgrounds.

You may think that, in such complex circumstances, any complaints are out of order. But when has life been about fairness? I shall begin with delays before the General Court (known as the Court of First Instance pre-Lisbon Treaty). In important categories of cases such as state aid and other competition cases, the proceedings before the General Court can sometimes last for more than 5 years, which no-one will find acceptable. Three options are believed to be under consideration for dealing with the problem: the formation of a separate specialist trade mark court, perhaps along the lines of the European Civil Service Tribunal (a court set up to deal with EU institutional staff cases); an increase in the number of judges; or the formation of a specialist chamber. There is a difference in the time taken for each solution, since a new court would take time, whereas extra judges could be appointed immediately. The CCBE has just agreed that the court needs to undertake urgent structural measures to address the problem of delays.

Unlike our own courts, the European courts are not so dependent on oral pleadings. There are many complaints about the oral procedure in either the General Court or the European Court of Justice. Here are some of the questions being asked. What about three dates being suggested six months in advance, and the court investing in some kind of sophisticated scheduling software? Should the oral hearing itself be able to be extended beyond 30 minutes on request in the General Court? What about technical questions being sent in advance? What about a full transcript of the oral hearing? What about the right to subsequent comments in writing if the court raises new issues?

As for the written pleadings, the European Court of Justice runs a strict limit on their length. Practitioners feel strongly that there is no connection between the length of pleadings and, for example, the complexity of the case. They feel that it is essential that there should be more realistic rules on length of pleadings. Is not the automatic reply received from the courts about exceeding the length of pleadings against the rights of the defence? And, regarding the time taken for proceedings, should not a simpler case progress faster than a complex one (which is not the case at present)?

We should not treat the two courts in the same way, since the General Court deals with questions of fact and law, whereas the Court of Justice deals with questions of law only. In addition, there is the possibility of appeal with cases before the General Court, but not before the Court of Justice.

Finally, the Court of Justice is understood to be reviewing its rules of procedure. Will this be an open procedure, with stakeholders such as lawyers being consulted? If not, why not?

These are the supreme courts of Europe. There should be as much discussion about their workings as there is about other courts. Only in that way can the balance between the needs of democracy and the needs of justice be maintained.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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Some lessons for the Legal Services Board
Jonathan Goldsmith
Friday, 25 June 2010

The Legal Services Board can take a leaf out of the American Bar Association’s book when planning its next radical review of legal services.
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The ABA does not seize on an ideology (‘markets are wonderful’, say), and then experiment with members’ lives without any research. They go about it the other way. I have written before about their 2020 Ethics Commission, which is looking at how globalisation and IT will affect future practice. They have a three-year programme to reach their recommendations (are you listening, LSB?):

‘The commission expects its work to take three years.

  • Year one will consist of research, outreach, and analysis of information regarding critical issues identified in each of the three major subject areas;
  • Year two will focus on development of proposed policies, principles and, if necessary, model rules for wide circulation and comment; and
  • Year three will involve continued vetting of proposals and presentation to the ABA House of Delegates.’

They have been punctilious in seeking views in public hearings and other invitations. They have a listserv that anyone can join, where you can follow progress on intriguing issues, including the latest on our own UK developments. They have just finished consulting on outsourcing (but if you have views, they are still welcome). And they are currently researching whether to open the US market further for foreign lawyers wishing to practise there.

I have been part of the debate for a number of years on opening the US market to foreign lawyers, and this is a historic opportunity to push for greater liberalisation. The US’s structure for the regulation of its legal profession is based on the states, and in particular on the Supreme Court of each state. The American Bar Association can pass model rules on regulation, but has no power to regulate: the state, usually through its Supreme Court, regulates the legal profession. As a result, there are as many regulatory structures – including of foreign lawyers – as there are states, some very liberal, some very conservative. Trying to change the rules of each one is costly and time-consuming, as the Law Council of Australia, which has tried that tack, has found.

The Americans usually say ‘Tell us which state you want to practise in, and we’ll see whether we can take steps towards liberalisation there’, knowing full well that the major economic powerhouses, like New York and California, are pretty open for foreign lawyers. To which we always reply: ‘No, we want to be able to practise wherever we want, from North Dakota to New Mexico – they should all be open!’ Of course, if we push the argument too hard, they say in reply that they want to be able to practise in Europe from Estonia to Malta. Round and round the argument goes.

The 2020 commission is also investigating the impact of alternative business structures on US practice. They are concerned about the impact on US firms not only of what is going on in England and Wales, but also the developments in Australia, for instance the floating of law firms on the Stock Exchange.

There will be a public hearing run by the commission during the forthcoming American Bar annual meeting in August, where interested individuals or organisations can put their views. The CCBE is invited to meet the commission earlier in the day, where we will explain some of the projects for proving the cross-border electronic identity of lawyers in Europe. They are interested to hear about the Akzo Nobel case on in-house counsel and legal professional privilege, and our views on the liberalisation of rules for practice by foreign lawyers.

Research, public hearings, listservs: are you listening, LSB?

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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