As the EU expands, June O'Keeffe sets out the case for a common understanding of criminal law systems to protect the rights of individuals abroad, and examines how to resolve the complexity of different laws on wills and succession


As the EU institutions get back to work after the summer break and Peter Mandelson and the 24 other Commissioners-designate prepare to take office in November, you may be forgiven for asking: does this affect me in any way?


While the struggle over commissioners' portfolios may have transfixed the political classes in Westminster, it is hardly likely to have set the heartbeat of the average solicitor racing. However, there are important topics of interest to solicitors that are increasingly finding their way on to the European agenda because companies and individuals move around Europe more than in the past and take (or create) legal problems in their wake.


This article - and subsequent 'Brussels Watch' columns - will aim to present a snapshot of some of the proposals emerging from Brussels likely to be of interest to the legal profession.


As far as the areas of criminal and civil law go, the remit of the EU is limited to proposing legislation on cross-border issues, but this can still have an important effect on solicitors working in these areas.


In the field of criminal law, for example, there is a European Commission consultation under way on mutual recognition of non-custodial pre-trial supervision measures. The idea mooted is the possibility of a judicial authority in one member state recognising a non-custodial pre-trial supervision order issued by another member state. Essentially, this would permit a person to fulfil their bail conditions in the country where they normally live rather than the one in which the offence was alleged to have been committed - a provision that many a lorry driver accused of smuggling in France or aeroplane spotter in Greece might be glad of.


The idea is that such a system would reinforce the right to liberty throughout the EU as a whole. The views of legal practitioners in such general and early-stage reflections are particularly welcome and the Law Society's criminal law committee will be responding in due course.


Once again on the criminal law side, at the request of European governments, the commission has come forward with proposals aimed at increasing the rights of suspects and defendants who are faced with the prospect of criminal proceedings in another member state. UK nationals do sometimes find themselves on the wrong side of the law in other member states, whether supporting Sven's dream team in Portugal or throwing themselves in front of marathon runners in Greece.


Now that the EU has expanded to take in several former Communist bloc countries with relatively young criminal justice systems, it is even more important than ever that we have a common understanding of the way in which those who come into contact with the police in other countries can expect to be treated.


The proposal currently being discussed aims to ensure that all suspects and defendants would be presented with a letter of rights setting out their minimum rights with specific provisions for vulnerable witnesses. The Law Society sees this as just the beginning of possible future activity in this area to protect UK citizens abroad.


Another area coming under the European spotlight is that of wills and succession. Given the number of Britons who buy second homes in other EU member states, bequeathing a dream home in the south of France can turn into a nightmare when it comes to assessing inheritance taxes.


Faced with a different legal system or worse still, a conflict of jurisdiction, families can find their assets being tied up for long periods of time while issues such as applicable law and jurisdiction are decided. Greater co-operation at a European level could help to sort out these issues.


Given the stark differences that exist between European legal systems in this area - with regard to tax treatment, the concept of domicile and the system of trusts (which is unique to the common law), to name a few, harmonisation of the substantive law on wills is not an option.


There are nonetheless ways in which the clients caught up in this tangle of European laws could be helped - for example, by an approach that helped to determine which court would deal with the administration of an estate. This would mean that a judgment in France on an estate could then be recognised and enforced by a simple procedure in Estonia.


The Law Society has been participating in these early ruminations on how the law on wills and succession can deal with these cross-border problems and welcome thoughts from practitioners or examples of problems their clients have encountered.


The other way in which individuals are moving European law forward is through their use of the courts. In the coming months, the European Court of Justice is expected to pronounce on the rights of third-country nationals to move around the EU in order to acquire citizenship.


The case (Chen C-200/02) concerns a Chinese woman who moved to Northern Ireland to give birth in order for her future child to acquire Irish nationality. Mrs Chen subsequently moved to Cardiff with her daughter, Catherine, where her application for permanent residency was rejected.


The case was taken to the European Court of Justice, where the Advocate-General opined that because Catherine had obtained Irish citizenship by the place of her birth, she therefore had the right to reside in any EU member state, provided she had sufficient financial means.


Further, this right would be undermined if her parents did not have the right to accompany her, so her birthplace also conferred rights on her parents. If the court upholds this view in its final judgment, as it is likely to do, this could have dramatic implications for UK immigration rules.



June O'Keeffe is head of the Law Society's Brussels office. For further information on these or other issues, contact the office at: brussels@lawsociety.org.uk