The EC's proposals for mutual recognition could see the successful solution to pan-European civil, criminal and asylum and immigration matters, says June O'Keeffe

The European Commission lays out its legislative wares at the beginning of each year in the guise of its annual work programme, which is the closest Brussels gets to a Queen's Speech.


Last year was relatively lean in legislative terms, with new initiatives taking a back seat to the big-ticket decisions to be made by heads of government - the draft Constitutional Treaty and the appointment of a new commission - as well as to the European Parliament elections.


This year is likely to continue in the same vein, but as the new commission and parliament bed down, one area that will be the exception is 'justice and home affairs' - Brussels' jargon for civil, criminal and asylum and immigration matters.


This is a significant change from a decade ago, when decisions in the EU seemed to be taken in just about everything except this field. The reason is that in 1999 the member states finally decided that the only way they would be able to co-operate in this area would be on the basis of mutual recognition rather than harmonisation. Instead of trying to harmonise substantive law throughout the EU, member states have agreed to trust one another's legal systems, share information and recognise judgments. Remarkably, this has worked, if the number of decisions produced is anything to go by.


A further ambitious programme of work in this area was launched at the end of 2004 and, as a result, expect to see a number of issues emerge that will be of interest to solicitors and their clients.


In the spring, the commission is expected to publish a Green Paper on divorce (rather obscurely referred to as 'Rome III'), which should address the issue of how to regulate the way international divorces are handled. It will relate to the applicable law in divorce proceedings - in other words, it will deal with which country's law should apply in a multinational divorce.


In tandem with this Green Paper, the commission aims to release a proposal in October to facilitate the recovery of maintenance obligations within the EU. Firstly, this will aim to make sure that any maintenance decision given in one member state is recognised and enforceable in any other without a further procedure being required. Secondly, the proposal will aim to simplify access to the enforcement of maintenance decisions in any member state by establishing minimum common standards.


And just as marriage and divorce are acquiring a pan-European dimension, so too is death. Given that a growing number of wills have a cross-border dimension, the commission is planning to bring out a consultation document in the spring that will look into the conflict of laws in matters of succession, including the question of jurisdiction, mutual recognition and enforcement of decisions. It has also undertaken to propose a European certificate of inheritance and include a mechanism to determine the existence of last wills and testaments of EU residents.


These proposals will have strong support from many quarters and can be identified as examples of how EU legislation can help individuals who want to move around the jurisdiction. However, there are a number of proposals on the criminal side that will be much more controversial but are equally reacting to real-life problems that are cropping up daily.


Foremost is the planned proposal for the creation of a European criminal record. The underlying purpose is for the commission to develop a strategy on a European-wide exchange of information on previous convictions.



The commission intends to establish a computerised system for exchange of information, including an index of offenders, and later to evolve this into a standardised format for Europe-wide criminal records. The long-term goal is to apply the mutual recognition principle to previous convictions. This means that someone convicted of rape in France in the past and being sentenced for a rape offence in England could be counted as a repeat offender. The English courts will be able take into account the foreign judgment when sentencing as if it were a national judgment.


The commission also aims this year to make progress on the issue of the mutual recognition of non-custodial pre-trial supervision measures - or bail. The objective is to substitute pre-trial detention with non-custodial supervision measures and to transfer these to member states where the suspected person normally has his or her residence. This would allow the suspected person to be subject to a supervision measure in his normal environment until the trial takes place in the foreign member state. The detention abroad of the accused &150; whether Premiership football players or plane spotters &150; would no longer be needed.


None of these proposals will necessarily come forward on the commission's proposed timetable. And even if they do, they must still be agreed by the member states, taking into account the views of the European Parliament. The important thing is rather that they represent a trend in European activity that is likely to accelerate, adding a new dimension to the work of criminal, civil and family law practitioners in England and Wales.


June O'Keeffe is head of the Law Society's Brussels office. For additional information, contact the office at: brussels@lawsociety.org.uk