Europe

LAWYERS’ ESTABLISHMENT DIRECTIVE

Luxembourg adopts implementing legislation

In December 2002, Luxembourg published national implementing measures for the Lawyers’ Establishment Directive which aim to facilitate the establishment of lawyers on a permanent basis in a Member State other than their home Member State. Although the Directive was due to be in force in 2000, the French and Irish governments have not yet given effect to it. Ireland was found to be in breach of its obligations in this respect by the European Court of Justice in a judgment delivered in December 2002. Separately, the ten candidate countries of central and eastern Europe are also working on transposing the Directive in preparation for their membership of the EU, foreseen for May 2004.

COMPETITION LAW

Package of reforms for EU competition policy

The Commission’s Competition Directorate-General is set for a busy year following the publication in December 2002 of a proposal for the revision of the Merger Regulation (http://europa.eu.int/eurlex/en/dat/2002/c_331/c_33120021231en00180031.pdf) and best practice guidelines for conducting merger control proceedings (http://europa.eu.int/comm/competition/mergers/others/best_practices_public_cons.pdf). The proposal for a review of the Merger Regulation suggests scrapping the requirement for the notification of transactions, within one week of a deal being struck. There are also provisions aimed at simplifying the system for referral of merger cases and incorporating a more flexible timetable for the Commission’s review of mergers. As part of the Competition DG’s internal reforms, a new post of Chief Competition Economist will be in place later this year. In addition, there are plans to establish a peer review panel with the aim of bringing a fresh pair of eyes to each merger decision. The draft guidelines on horizontal mergers (mergers between competitors) is expected to go some way towards clarifying the current legislation relating to horizontal mergers. Meanwhile, the Commission will be publishing a series of Notices this year, aimed at clarifying aspects of the Regulation on the implementation of Articles 81 and 82 of the EC Treaty, which was adopted in November 2002.

FREE MOVEMENT OF LAWYERS

ECJ asked to rule on the recognition of legal qualifications

On 16 January, the European Court of Justice held an oral hearing on the Morgenbesser case (Case C-313/01) which concerns the application pf Directive 89/48 on the mutual recognition of diplomas to legal qualifications. Ms Morgenbesser, an Italian national, pursued her legal studies in France, which she then sought to have recognised in Italy for the purposes of qualifying as a lawyer there. Previously the mutual recognition Directive has been used with regard to qualified lawyers seeking to re-qualify in another Member State as opposed to trainee lawyers who have not yet obtained the title of lawyer, as in this instance. The European Commission was represented at the hearing and was of the view that Ms Morgenbesser should be able to take advantage of the Directive in order to qualify in Italy, whereas the Italian government, supported by the Danish government took an opposing view.

CIVIL LAW

New proposals on small claims and the Rome I Convention

On 14 January the Commission adopted a Green Paper which it hopes will launch a broad debate on the merits of modernising and converting the Rome I Convention on the law applicable to contractual obligations, into a Community instrument (http:// www.europa.eu.int/eur-lex/en/com/gpr/2002/com2002_0654en01.pdf). The Commission is keen to stress that no decision has yet been taken on the necessity of modernisation or conversion into Community law. The conversion of the Rome I Convention into a Community instrument would mean that national courts could refer preliminary questions on the interpretation of the Convention, to the European Court of Justice. This would lead to an improvement in the consistency of interpretation of conflict of laws rules at EU level. Interested parties are invited to send their comments to the Commission before 15 September 2003. The Commission will organise a hearing on the Green paper at the end of this year. A separate Green Paper on a European Order for Payment and measures to simplify and speed up small claims litigation, was launched on 23 December 2002 (http://www.europa.eu.int/eur-lex/en/com/gpr/2002/com2002_0746en01.pdf).

The Green Paper explores the various options for reducing the burden and expense of obtaining a judgement against a defendant in another Member State, in respect of small claims. The Commission has set a deadline of 31 May 2003 for the submission of comments. The Commission will decide at a later date, whether to hold a public hearing to debate the issues raised in the Green Paper.

EU ENLARGEMENT AND THE LEGAL PROFESSION

Baroness Nicholson of Winterbourne MEP

Friday 13 December 2002 marked an important event in the history of the European Union. Years of negotiations with 10 candidate countries ended at the EU summit in Copenhagen with the EU agreeing to enlarge to 25 members, thereby creating a single market of 450 million people. EU enlargement has many important implications, one such implication being the impact it will have on the legal profession.

What distinguishes the European Union from earlier attempts to unite Europe is that it works by means of law. Law translates into reality the EC Treaty vision of a community of interest, based on solidarity and founded on fundamental values such as freedom and equality. Unlike a national legal order, the community legal order is not a self-contained system but relies on the support of the national systems for its operation. In this context, the judiciary and the legal profession of individual Member States have had to adapt to bring about the implementation of Community Law, and as a result, the EC Treaty vision.

Enlargement of the EU means the accession of millions of citizens to rights and obligations conferred by European Community Law. More particularly, it means that every candidate Member State, were it to accept to join the EU, would have to integrate EU Law into their existing domestic legal framework, thus allowing its new citizens to enjoy the same rights and protections as those enjoyed by citizens of current Member States.

One such right is embodied in Directive (98/5/EC) on freedom of establishment of lawyers. This directive was passed to facilitate practice of the profession of lawyer on a permanent basis, in a Member State other than that in which the qualification was obtained. By virtue of these provisions and of Directive 77/2496/EEC on freedom to provide services, EU enlargement will entail that lawyers of the 15 existing Member States will be entitled to pursue on a permanent basis, professional activities that they generally enjoy in their Member States.

As attested by Friday 13 December, the European Union is still on the formation path, and the legal profession is certainly not an area that is spared by the transformations necessary to further the objectives of the Treaties, specifically as it is so interrelated with one of the fundamental aims epitomised in the Treaties; i.e. freedom of movement of workers. If we are to move towards a smooth integration of the single market while welcoming millions of new members, it is important that we consider closely the challenges posed by a single, safe and efficient market in legal services. Issues such as harmonisation of training and qualifications, admission to practice conditions, and harmonisation of legal aid and civil procedures are some examples of such challenges.

Baroness (Emma) Nicholson of Winterbourne, is a Liberal Democrat MEP for South-East England and Vice-Chair of the European Parliament’s Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy. She was appointed to the House of Lords in 1997.

CIVIL LAW

Commission listens to stakeholders’ views on proposed Rome II Regulation

Stakeholders eager to put their stamp on the contents of the draft proposal for a Council Regulation on the law applicable to non-contractual obligations (Rome II) gathered in Brussels for an audience with representatives of the Commission’s Justice and Home Affairs Directorate General, on 7 January. The Hearing followed a period of consultation organised by the Commission, which resulted in 80 responses from interested parties, including the Law Society of England and Wales. Despite a number of interventions which criticised the Commission for the lack of an explanatory note to accompany the preliminary draft proposal and for the use of unclear terminology, the Hearing was successful in teasing out some of the key areas which the Commission will need to address in the coming months. As a result of the Hearing, the Commission representatives pledged to examine whether to include intellectual and industrial property rights in the draft legislation and will give further consideration to the proposed rule regarding the determination of applicable law in cases of defamation. There will also be some further work on Article 3 (which contains the general rule regarding the law applicable to non-contractual obligations). A new draft proposal for a Regulation on Rome II is expected to published by July 2003.