It never rains but it pours. I go away for a week to the IBA conference in Dublin, and find on my return many developments of interest for solicitors.
First, there is something to upset in-house lawyers. The final appeal in a case regarding this group that I mentioned before when it was at a lower level - Case T-226/10 - has now been published. The case arose out of an original appeal against a decision of the European Commission by a Polish entity (the Polish telecommunications regulator, the UKE). The Polish entity was represented before the general court by its in-house legal advisors, with whom it had an employment relationship. (Legal advisors have a right of audience before the Polish courts.) The general court considered that this fell short of the requirement in article 19 of the Statute of the court of justice of the European Union of being represented by a 'lawyer' and, consequently, dismissed the action as inadmissible. The decision was then appealed to the court of justice. The court of justice has now concurred with the general court.
Second, and while on the subject of the European courts, the court of justice has just published its new rules of procedure, which will become operational as from 1 November 2012. The general court is considering its own rules of procedure, and my organisation, the Council of Bars and Law Societies of Europe (CCBE), published last week its views on possible changes.
Next, for those who follow alternative business structures closely, the European Commission has just commissioned a study entitled Inventory of legal form and shareholding requirements in the EU services sector and their economic assessment. This arises out of articles 15 and 16 of the Services Directive 2006/123, which provide that member states must not impose obligations on service providers wishing to establish or to offer cross-border services, for instance by taking a specific legal form or imposing requirements which relate to the shareholding of a company if they are discriminatory, unnecessary or disproportionate.
The Commission believes that such requirements can constitute barriers to the internal market in services and should be simplified or abolished if not necessary or proportionate. The study is to cover lawyers as well as tax advisors, accountants, patent attorneys, engineers and architects.
Then we come to our old friend, money laundering. As previously announced, the Financial Action Task Force (FATF) has started a new ‘typology’ project that will look at the evidence behind lawyers’ money laundering and terrorist financing vulnerabilities. The FATF has now issued a questionnaire aimed specifically at regulators of the legal profession, which has been circulated to our member bars for completion. The questionnaire covers fields like the following, always with a view to discovering what they call ‘red flags’:
- Identifying examples where legal professionals have been complicit in money laundering;
- Identifying specific types of transactions in which legal professionals may be unwittingly involved in money laundering;
- For jurisdictions where a reporting obligation applies to the legal profession - obtaining information on the level of reporting and the types of matters reported;
- Considering how the supervision structure and legal professional privilege and confidentiality influence reporting approaches across the legal profession, and the role ethical obligations did or should have played in the case studies obtained; and
- Identifying good practice in terms of awareness raising and education of the legal profession; positive interaction between law enforcement and professional bodies; and the role of effective sanctioning by either professional bodies for ethical breaches and law enforcement for criminal conduct.
Finally, the EU’s language debate took another twist. A Spanish lawyer complained to the European Ombudsman that the European Commission’s public consultations are not published in all 23 EU languages (many are available only in English). The Commission pleads substantial difficulties of delay and resources, but the ombudsman – and indeed the European parliament in a resolution – have backed the Spanish lawyer. This obviously does not concern English-speaking lawyers directly, but could do if translation requirements were to affect the legislative timetable.
That’s it for this week!
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs