After the protracted handover of European commissions, there is much to keep lawyers occupied.
The leaves are turning, a new term begins – and that applies to the European Commission, too. After the agonisingly protracted passing of the baton from one commission to the next, the new commissioners under president Jean-Claude Juncker are about to enter the final lap, and be allowed to begin work. Of interest to lawyers, the new justice commissioner, Věra Jourová, barely scraped through the approval proceedings held by the parliament.
But the big boss in charge of the rule of law and the Charter of Fundamental Rights, first vice-president Frans Timmermans, is generally considered to have emerged as the best of the bunch from the hearings.
Once the new commission starts, we can expect to deal with its new initiatives – for instance, the promise made by president Juncker that the Transparency Register will become mandatory (that is, the system through which lobbyists, including lawyers, are expected to register their interests). Talks are taking place now between the commission and lawyers’ representatives about how lawyers’ concerns - for instance, regarding professional secrecy - can be reconciled with the current register.
The commission continues to be concerned that so few law firms are registered (just over 80), while transparency campaigners howl in their ears about law firms operating on an uneven playing field.
Another initiative just announced is that the ‘Standard for Automatic Exchange of Financial Account Information in Tax Matters’, recently published by the Organisation for Economic Cooperation and Development (OECD), will be turned into a directive. As with money laundering, the EU is keen to be top of the class in initiating legislation which turns OECD policy guidelines into law.
There continue to be problems with the draft fourth money laundering directive that must be dealt with in this handover period, because they were not completed during the last commission’s and parliament’s lifetimes. There is an unresolved standoff between the council and the parliament (with European lawyers on the parliament’s side) over the question of pooled client accounts. Will such accounts continue to require a simplified due diligence in the new text, as under the old third directive, or must they be given the full treatment?
The well-known draft data protection directive continues to stir argument – most recently about how to incorporate into its text the European Court of Justice decision against Google on the right-to-be-forgotten online.
Lawyers are also watching the draft directive on the protection of undisclosed know-how and business information (trade secrets), the revision of shareholder rights, and the draft directive on single-member private limited liability companies.
The summer and autumn handover period have seen further activity, too – calls for bids to spend EU money. The EU outsources much of its important work. Despite the frequent bandying around of the term ‘Brussels bureaucrats’, there are relatively few of them, and they have to rely on outsiders - universities, consultancies, sometimes law firms - to carry out many of their programmes.
As a result, the commission frequently publishes calls for proposals, in which the broad parameters of the items it wants to see implemented are laid out, within agreed policy guidelines.
In this respect, the legal funding season has arrived again. There are a number of calls now open, for projects to support judicial cooperation in civil or criminal matters, improve national or transnational e-Justice, and to enhance the rights of people suspected or accused of crime. The delegations belonging to my organisation have decided to set up an independent foundation to carry out funded projects on behalf of the European legal profession.
Consequently, the European Lawyers Foundation has just been established in The Hague, Netherlands, with the aim of becoming a project leader in the field of justice and the rule of law.
So, as we can see, the Union we are thinking of withdrawing from continues to buzz with lawyers’ issues.
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