Memorandum by the Bar Council of England
and Wales
1. The subject matter of the inquiry now
being carried out by Sub-Committee E is of great interest and
may cast a spotlight of transparency on an area not especially
well known or understood, namely where the ideas come from for
EU legislative proposals and how such ideas are selected, prioritised
and developed to the stage of becoming a formal proposal (after
which the better-known procedures take over that are not the focus
of the present inquiry).
2. This evidence is submitted on behalf of the
European Committee of the Bar Council of England and Wales. It
is substantially based on the experience of monitoring and influencing
the development of EU legislative proposals gained in its Brussels
office.[2]
Members of the Committee have also passed on their own experiences.
3. In the nature of things, such experiences
are somewhat sporadic and may not be representative or typical.
We have therefore concentrated our efforts on a few particular
points that we wish to draw to the Sub-Committee's attention,
and hope that they may contribute to enabling the Sub-Committee
to build up a picture from all the evidence submitted.
4. In particular the European Committee
is better able as matters stand to provide evidence based on civil
justice proposals rather than criminal justice about which the
Sub-Committee has specifically asked. It is our expectation that,
once the Lisbon Treaty enters into force and competence in the
criminal justice field moves to the Union, the Commission's overall
policy approach is likely to be similar in both fields. That said,
we would be delighted to seek the views of the Criminal Bar Association
on specific criminal justice measures to date if the Committee
would find that useful. We have no experience in relation to transport
matters and very little in connection with environmental pollution
and CO2 emissions.
5. Our overall impression is that the process
of deciding what topics should be the subject of a legislative
proposal is at best ad hoc. Thus, ideas may emerge from:
(i) Formal Council meetings, such as
at Tampere (1999) and the Hague (2004) in the justice field. (We
are not aware of any stakeholder consultation with the legal profession
by ministries at national level in the run-up to these meetings).
(ii) Informal meetings between Member
State delegations, the Council and the Commission, casting around
for ideas.[3]
(iii) The Commission commissioning external
studies by institutes with which they work closely, which may
then form the backbone of Green Papers that are apparently structured
in such a way as to elicit responses that support the studies'
findings. A topical example of this is the 2005 Green Paper on
Wills and Succession, which has paved the way for the Commission
proposal, expected later this year.
(iv) An energetic MEP having a particular
issue around which he/she builds an own-initiative report encouraging
the Commission to legislate, which is then adopted by the EP and
carried forward by the Commission; (example—the European
Private Company Statute; and probable future proposals in the
light of the recent EP reports on limitation periods and the role
of national judges).
(v) Member States or a powerful lobby
within a Member State using (iv) to their own advantage (examples:
the Italian notaries' annex to the 2006 EP own-initiative opinion
on the Commission Green Paper in Succession; the imminent EP own-initiative
report on authentic instruments, behind which lie, apparently,
the French notaries).
(vi) Pressure from powerful individual-interest
lobbies eg the road traffic insurers hold an annual conference
(at Trier) which is used as a brainstorming/discussion forum in
which ideas are ventilated, some of which are then incorporated
into proposals which become the motor insurance directives.
(vii) In the criminal justice field,
under the current Treaty arrangements, from one individual Member
State (though this will change to nine once the Lisbon Treaty
is ratified, and we are increasingly seeing joint Member States
proposals in the field—eg the current in absentia proposal,
submitted jointly by six Member States). Single Member States
initiatives can raise their own special problems:
— National hobby horses are inflicted
on other Member States.
— EU institutions are obliged
to carry forward a proposal for which no resources, including
time and manpower, were set aside.
— Such initiatives may cut across
the Commission's own planning, sometimes muddying the waters.
(example: non-custodial supervision, bail and pre-trial detention).
(viii) As anticipated in the call for
evidence, the Commission does also draw inspiration from bodies
such as the Hague Conference and the Council of Europe, with which
it works closely. If the Commission issues a proposal based on
a non-EU Convention to which all or some EU Member States are
party, its approach is always to raise the bar for the EU legislation,
on the grounds that within the EU, mutual trust and cooperation
can be expected to be higher (eg the Rome I regulation having
its origins in the Rome Convention 1980).
(ix) The Call for evidence asks whether
ECJ judgments can be the source of inspiration for legislative
proposals. Of course, in cases brought on the issue of legal base
(eg ship source pollution C-440/05) what the ECJ says will have
a direct impact on legislative proposals, either to amend the
instrument in question or in the future—witness the recent
proposal on sanctions for breach of environmental law. However,
in such cases, the idea for the legislation itself was already
manifest by the Commission's issuing the original proposal. Likewise
where there are questions eg in a preliminary reference on the
compatibility of a legislative provision with the fundamental
freedoms of the Treaty. That said, it may be that ECJ rulings,
say on the application of the fundamental freedoms, would inspire
new legislative activity.
6. Looking specifically at current work
and considering where the ideas for it originated in the civil
justice field, the Commission is to issue a proposal on jurisdiction
and applicable law in the Succession field later this year. Work
is also continuing on the Rome III proposal, on maintenance obligations
and on an eventual proposal in the field of matrimonial property.
With the imminent adoption of the Rome I regulation (with or without
the participation of the UK); the relatively recent adoption of
Rome II; and the recent Council conclusions intended to set the
parameters, for the time being, for the Commission's work on the
Common Frame of Reference, the Council and the Commission are
beginning to talk in terms of completing their work on private
civil law in the EU in the coming decade.
7. The origins of such proposals can be
traced back to the introduction of the relevant treaty base, Articles
61-67, into the TEC by the Treaty of Amsterdam in 1999.
8. Since 1999, there have been two major
legislative work programmes covering all activities in the Justice
and Home affairs area. The first, adopted by the European Council
in Tampere in September 1999 (together with the earlier Vienna
Action Plan) set out an ambitious programme of measures and a
detailed timetable for their achievement over a four year period.
The second, adopted by the European Council in November 2004,
was then implemented by a five year Action Plan, adopted by the
Commission in May 2005. Work under this Action Plan is almost
complete, and the Council and Commission are currently devising
its successor.
9. In the civil justice field, the legislative
proposals under these two work programmes can be slotted into
a predictable model, based on the Treaty wording. The Council
has devised a list of categories of measures in this field according
to the nature of the cross-border rules they lay down, including:
jurisdiction, applicable law; recognition and enforceability;
and enforcement. In setting down programmes of measures to be
implemented in the field, the Council, in close consultation with
the Commission, effectively draws up a table with the categories
of proposal on the y axis, and the areas of activity in the civil
justice field (family law, sub-divided into divorce and legal
separation; ancillary relief; matrimonial property, child custody
issues; Succession; civil and commercial contracts and judgments
thereon, etc) on the x axis. Each subsequent work programme fills
in the boxes of what has not yet been achieved. Beyond that, additional
proposals are added, which will facilitate the effectiveness of
these measures eg rules on evidence, legal aid, service of documents;
alternative dispute resolution. It would be reasonable to expect
the institutions to take a similar approach to legislating in
the criminal justice field once the EU has competence to do so
under the Lisbon Treaty.
10. Before the civil justice programme is
declared complete, however, we may expect to see some form of
consolidation of the existing civil justice acquis, much as we
are seeing in the consumer law field where the Commission's DG
Consumer Protection is currently working on a horizontal framework
directive to consolidate and improve the existing acquis; and
as in the Internal Market field for services two years ago with
the adoption of the framework Services Directive.
11. If one looks at current and imminent
proposals in the civil justice field through the lens of expectation
that one day all of the rules on jurisdiction, applicable law,
enforcement etc will be laid down in one framework instrument,
then it becomes clear that the Commission and Council will, as
a matter of course, aim for the most complete package in each
proposal. Viewed this way, it is hard to see, for example, what
a Member State such as the UK or Sweden can really do to exclude
applicable law provisions from the future Succession proposal,
or the current Rome III proposal, respectively, given that the
grand design requires that they be included.
12. It is further possible to predict that,
having achieved the consolidation of private law through the use
of private international law and other instruments developed on
the parameters mentioned above, the Council and the Commission
are likely to try to go further, seeking approximation of civil
law rules where that is permitted under the provisions of the
new Treaty. For example, the Commission is already now looking
at a possible proposal on the application of foreign law by national
courts.
13. We would make the following rather general
criticisms of the unsystematic nature of the emergence of legislative
proposals:
(i) There is little homogeneity built into
the system.
(ii) It is open to manipulation by powerful
interests.
(iii) Most significantly, there is no systematic,
thorough consultation of stakeholders (by which we include both
judges and practitioners) guaranteed to take place at the earliest
possible stage in the life of an idea for a proposal.
14. We consider that stakeholders should
be consulted at the beginning of the process, on both the need
for EU action in the particular field, and the form that that
should take.
15. Particular attention should be paid
not only to the principle of subsidiarity, but also to that of
proportionality. For example, it is our view that many of the
problems in the civil justice field, arguably correctly identified
to date by the Commission as justifying EU action, could have
been adequately dealt with by basing instruments on the principle
of mutual recognition, rather than the more far-reaching measures
that the Commission proposed. The Commission would of course argue
that it is obliged to carry out studies and impact assessments
before embarking on a legislative proposal, and therefore that
the safeguard we seek is already built into the system. However,
since we are not aware of the views of the judiciary or practitioners
in the Member States being systematically sought or incorporated
into those assessments, in our view they do not cure the ill.
16. Again in the Justice field, the Commission
is currently engaged in creating a body which it might claim should
deal with some of the concerns expressed above. This is to be
known as the Justice Forum, due to meet for the first time on
30 May 2008. But we are not alone in our concerns that this could
be used by the Commission as a fig leaf. There must be a risk
that the Commission will present legislative ideas to the Forum,
which, especially sitting in Plenary, will be an extremely disparate
group of interests. It is likely to have difficulty to agree on
anything other than rather bland comments on proposals. The Commission
may nevertheless try to make a virtue of having "consulted"
the Forum or claim that its idea was "approved" when
in fact the Forum was not able to reach a clear position. Moreover,
since the Commission is adamantly refusing to allow seats on the
Forum for stakeholders from national bodies (including the Bar
of England and Wales), but instead relying on pan-European associations
(in our case the Council of the Bars of Europe ("CCBE"),
the European Criminal Bar Association ("ECBA") and the
Pan European Organisation of Personal Injury Lawyers ("PEOPIL"),
the risk must be considerable that the voice of the Common Law
will be drowned out, if it is heard at all. To be clear, whilst
the Bar welcomes the Commission's intention to consult more widely
with stakeholders on policy and legislative initiatives, as manifested
in the creation of this Forum, we are concerned that, as presently
constituted, its practical value will be limited and perhaps even
abused.
17. The Commission departments, again especially
in the justice field, are understaffed, and rarely have common
law lawyers within them, much less in all key areas. Accordingly,
Commission consultations (eg the 2005 Succession Green Paper;
the 2006 Matrimonial Property Green Paper) and proposals are often
drafted by someone with little knowledge of the subject matter,
and likely no knowledge at all of the implications for the common
law of what they are suggesting.
18. Nor do such inadequacies in our view
necessarily become ironed out in the legislative process itself.
19. While there can be no doubt that the
introduction of the co-decision procedure in the civil justice
field (except for family law) in 2001, and its imminent extension
to the criminal justice field when the Lisbon Treaty is ratified,
have improved the situation in terms of providing greater democratic
input and more opportunity to influence the debate and right wrongs
in Commission proposals, there are systemic flaws which prevent
the co-decision procedure from providing the checks and balances
needed to weed out unnecessary or inappropriate Commission initiatives.[4]
20. Once a proposal is adopted by the Commission,
no matter how flawed it may be, it inevitably becomes the template
for the eventual instrument, even if extensively amended during
the legislative process. A Commission proposal is thus a very
powerful tool, and the right of initiative is understandably prized
by the Commission and envied by others.
21. Even at first reading, where there are
no time limits, there is often woefully little real substantive
debate in the European Parliament on the substance of the issues.
22. Again, responding to a particular point
raised in the call for evidence, the other EU bodies, including
the Economic and Social Committee ("ESC"), not being
co-legislators, do not in our experience have much influence on
the ground in Brussels, whatever may be said officially.
18 April 2008
2 The Bar Council's Brussels Office has been headed
since its opening in 1999 by the (External Consultant), Director
of the Brussels Office and Executive Secretary of the European
Committee, Evanna Fruithof. Back
3
In the interest of completeness, we note that the Commission's
DG Justice, Liberty and Security has indicated informally to us
that it would always be interested to hear from us if we have
ideas for legislative proposals that it might take up, not least
as the UK's posture is often negative and critical; if there were
something that we should welcome, they would be glad to consider
it. Back
4
The European Parliament's 2005 rejection of the Commission's
2002 ill-judged proposal on the patentability of computer-implemented
inventions being a notable rare exception to this assertion. Back
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