Guide for Lawyers - The European Court of

Human Rights

Before we can enjoy the coming summer months, May is bustling with activity. Firstly, it gives me great

pleasure to note the launch of the CCBE’s most recent publication, The European Court of Human Rights: Questions & Answers for Lawyers, which is a guide for lawyers intending to bring a case before the Court. We especially thank Dean Spielmann, President of the European Court of Human Rights, for his support for this guide, which is also available at the Court. President Spielmann remarked that “the guide is especially important now due to revised Article 47, which has tightened the requirements for presenting a case before the Court”.

Secondly, with the European elections results soon to be known, the CCBE has closely been monitoring the electoral developments that could potentially see 400 million people cast their vote for a new European Parliament. The importance of these elections cannot be underestimated as the Parliament, under the auspices of the Lisbon Treaty, will play the key role in electing the President of the European Commission. European citizens will therefore have a great impact on the direction that Europe takes in tackling the economic crisis and in many other issues affecting people’s daily lives.

While the eyes of the world focus on candidates and ballots, the CCBE has concentrated efforts on publishing its Manifesto for the European Elections that discusses key achievable proposals for the forthcoming legislative session to enable better access to justice for citizens exercising their fundamental rights, including: 1) ending mass electronic surveillance of European citizens and their lawyers; 2) making justice affordable for citizens; 3) securing sufficient procedural safeguards in criminal law; and 4) delivering e-justice to citizens and businesses. Since the EU must present its 5-year justice program before the summer break, it is essential that we as lawyers - principal actors in the field of justice - ensure that our demands and aspirations are recognised.

For most Europeans, justice takes place mainly at the local or national level while events at the European level remain on the periphery of their daily lives. Consequently, this is an optimal time to raise awareness among citizens – voters – on how the choices made by the European Parliament and the Member States can have very direct influence on their rights and their access to justice. As approved at the last CCBE Standing Committee, the CCBE will try to raise this awareness further through its first European Lawyers Day on 10 December 2014, which will focus on the grave impact of mass governmental surveillance on citizens, especially with regard to maintaining their confidence in the confidentiality of lawyer-client communications and, ultimately, in the rule of law.

As always, the CCBE will keep you informed of electoral results as they unfold and details on the organisation of national events surrounding European Lawyers Day will be supplied soon – so stay tuned!

IN THIS ISSUE:Mid-Year Marathon 1In Brief 2EU Projects 3CCBE Calendar 7FEATURESUkraine: Follow-Up Report 4PECO Human Rights Letters 4CCBE Comparative Study on Governmental Surveillance of Lawyers’ Data in the Cloud 5Charting a Legal Course in Corporate Social Responsibility 6CCBE Statement on the Hague Convention on Choice of Court Agreements 7A Guide for Lawyers: The European Court of Human Rights 8Conference: “EU Courts – Looking Forward” 8Interview: 10 Questions 9Safeguards for Citizens in Criminal Proceedings 10Insurance Contract Law: Expert Report Pinpoints Obstacles to Cross-border Trade 10Retention Directive Declared Invalid by the ECJ 11Optional European Sales Law Receives Strong Backing by European Parliament 11Data Protection Regime Adopted by the European Parliament 12The CCBE Strongly Welcomes European Parliament’s Resolution On Electronic Mass Surveillance 13

CCBEInfoMID-YEAR MARATHON

EDITORIAL

Aldo Bulgarelli, President, with Dean Spielmann, President

of the European Court of Human Rights

COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE WWW.CCBE.EU 1

See page 8

MAY 2014 / NO 36

CCBE Conference: EU Courtspage 8

CCBE 2013 Annual Report

Click here to find out CCBE activities for the

past year.

ANTI-MONEY LAUNDERING• Proposal for a 4th Directive: The European Parliament’s

plenary session voted on 11 March on the amendments agreed by the ECON and LIBE Committees. The Council (Member States) now needs to reach its position. The intention is for the Greek Presidency to reach a ‘General Approach’ (Common Position) under its term (before end of June) and it is believed that there is a high chance of achieving this. It will then be for the Italian Presidency to finish the job (beginning in July 2014).

• FATF Stakeholder Forum: The Financial Action Task Force (FATF) organised a stakeholder meeting in Brussels on 25-26 March in order to discuss the Risk Based Approach. The FATF is revising its 2008 Guidance on the Risk Based Approach (RBA) to take into account various changes made following the revision of the FATF Recommendations in 2012. The CCBE, American Bar Association (ABA) and International Bar Association (IBA) participated in this meeting.

• Guidance on where lawyers may be unwittingly used for money laundering purposes: The CCBE, American Bar Association and International Bar Association have begun work on a concise typologies guidance illustrating cases where lawyers may be unwittingly used for money laundering purposes. This project is an own-initiative exercise as it is believed the guide will be of assistance to the global legal profession.

AUDIT• At its Plenary Session on 3 April 2014, the European Parliament

endorsed the preliminary agreement reached by the European Commission, the European Parliament and the Council last December, aiming to reform the audit market. To preclude conflicts of interest and threats to independence, EU audit firms will be prohibited from providing several non-audit services to their clients, including legal services, as set out in Article 5 of the agreed text. The Council formally approved the agreement at its meeting on 14 April 2014.

CORPORATE GOVERNANCE• On 9 April 2014, the European Commission published a

proposal for the revision of the Shareholder Rights Directive, a recommendation on corporate governance reporting and a proposal for a directive on single-member private limited liability companies. The proposals can be downloaded from the Commission’s website. The CCBE – through its Company Law Committee – will look into these initiatives and respond to them as appropriate.

DG ENTERPRISE• On 9 April 2014, DG Enterprise organised a major conference

on ‘Bolstering the Businesses of Liberal Professions’ bringing together representatives of liberal professions from all over Europe. The conference considered actions to be undertaken in the coming years in areas such as ‘Entrepreneurship Education’ and ‘Facilitating Access to Markets and Reducing Administrative Burden’. Kay-Thomas Pohl, chair of the CCBE Free Movement of Lawyers Committee, represented the CCBE at this conference. The European Commission also published recommendations of its High Level Group on Business Services on the same day.

EUROPEAN JUDICIAL TRAINING • A) Following publication of the 2nd Report on European

Judicial Training last November, according to which 2% (13,597) of all lawyers in private practice participated in continuous training activities in EU or other Member State law in 2012, the European Commission has now started gathering data for its next report,

covering the year 2013. Members of the CCBE - who were sent a copy of the Reporting Form 2013 on 25 March 2014 - will have until 30 May to respond. The European Commission told the CCBE that they are particularly keen in improving data concerning training of lawyers. B) The European Commission will hold a workshop on ‘Building upon good practices in European Judicial Training’ on 26-27 June 2014 in Brussels. The workshop should allow for an exchange on good practices ‘to organise, implement and evaluate training for legal practitioners’. Registration for the event is only for bodies involved in training legal practitioners. C) The CCBE EIPA Pilot Project on Training of Lawyers in EU Law will soon end with the publication of the final study, which will contain recommendations for the future organisation of training for lawyers in European law and practice.

GENERAL COURT - RULES OF PROCEDURE• The General Court is in the process of revising its Rules of

Procedure. The CCBE will be examining the draft text and submitting comments.

INTERNATIONAL LEGAL SERVICES (ILS)• The CCBE International Legal Services Committee has prepared

its ‘request’ position regarding the discussions with the United States in the framework of the current Transatlantic Trade and Investment partnership (TTIP) negotiations. The TTIP is the name of a trade agreement that is being negotiated between the European Union and the United States. The negotiations aim at removing trade barriers (tariffs, unnecessary regulations, restrictions on investment etc.) in a wide range of economic sectors so as to make it easier to buy and sell goods and services between the EU and the US. Legal services are included under the services negotiations.

PATENTS• European Patent Litigation Certificate: It is expected that

a Consultation on the European Patent Litigation Certificate will soon be launched by the Preparatory Committee of the Unified Patent Court. The CCBE will prepare a response to this consultation.

PECO• Armenia - First Vice-President visits the Armenian Bar:

On 22 - 24 April 2014, the Armenian Bar organised the official inauguration of its new premises, which host the Bar, the Public Defender Office and the School of Advocates. A number of foreign bars were invited. CCBE First Vice-President, Maria Ślązak attended the inauguration, which was the first CCBE official visit to the Armenian Bar.

• EEAS - 2013 Progress Reports on Implementation of the European Neighbourhood Policy: On 27 March 2014, the European External Action Service and the European Commission published the annual reports assessing the progress made towards the objectives of the ENP Action Plans and the Association Agendas. These progress reports on implementation of the European Neighbourhood Policy included, inter alia, country reports on Armenia, Azerbaijan, Georgia, Moldova and Ukraine. A press release on Belarus was also published.

PUBLIC PROCUREMENT • The new rules on public procurement have now been published

in the Official Journal of the EU. The Directive - which entered into force on 17 April 2014 - will not apply to a number of public service contracts including legal services, as specified in Article 10 of the Directive.

2COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE

WWW.CCBE.EU

In B

rief

CCBEInfo MAY 2014 / NO 36

FIND-A-LAWYER 1 (FAL 1 – Electronic lawyer search facility on European Commission e-Justice portal)

• Fourteen bars participating in FAL 1 are now fulfilling all the requirements set by the European Commission to connect their national lawyers’ databases with the central FAL Search Engine (FAL SE), which will soon be available on the e-Justice portal. The rest of the bars are currently undertaking the necessary IT work and expect to be ready before the summer break. The public launch of the FAL SE on the e-Justice portal is expected to take place in September 2014.

FIND-A-LAWYER 2 (FAL 2 – Electronic verification of lawyer’s status)

• The project is progressing according to the initial planning. Participating bars received the information on the look and design of the FAL 2 Central System for the electronic verification of lawyers. In a presentation of the FAL 2 interface, which took place during the last meeting of the FAL 2 subgroup in April, the IT subcontractor made the first attempt to verify someone as a lawyer via FAL 2 by using a smart card and a card reader. All policy decisions are finalised in the project, which gives bars the opportunity to now focus on the project’s technical implementation at bar level. The testing phase for FAL 2 is expected to begin in September 2014.

EUROPEAN TRAINING PLATFORM (ETP - website for lawyer training courses)

• The demo ETP website is expected to go live for testing by the 20th of May. From that date onwards, training providers participating in the testing phase will be able to upload their training courses by using either the manual or the automated model for data transfer. When a sufficient number of courses are successfully uploaded and available online, users will begin testing the search functionality and all other functionalities available for registered users. The testing phase for users and training providers is expected to last until October 2014. The final overall testing of the platform will then begin.

EVIDENCE PROJECT (Application of new technologies to the collection, use and exchange of evidence)

• The grant agreement with the European Commission was signed at the end of February 2014 and the project officially started on 1 March 2014, with a kick-off meeting on 24-25 March 2014 attended by the CCBE. This project is composed of 11 Work Packages (WP) that deal with different matters (such as project management, legal issues, technical issues, data protection issues, law enforcement issues). The final objective of this project is to create a Road Map for the realisation of a Common European Legal Framework for the application of new technologies in the collection, use and exchange of electronic evidence, including a research agenda identifying issues, policies and actions to be undertaken in future programmes and plans. The project will last 30 months (until August 2016).

e-CONFIDENCE (Project on protecting confidentiality, principally in lawyer-client relations)

• The CCBE presented a proposal on 7 March 2014 to the European Commission to implement this data protection project. The CCBE would lead the project, with four research institutions as partners. The proposal evaluation will take about six months, with the results expected to be known by the 3rd quarter of 2014. If awarded, the implementation would start on 1 January 2014 and run for 24 months.

CGAE’S PROJECT ON MIGRATION (Training for lawyers in EU Migration Law)

• The Spanish Bar (CGAE) presented a proposal to implement a project on migration in which there would be (if the proposal is awarded) three other partners: the CCBE, the Italian Bar and the Consultative Council of European Judges of the Council of Europe. One of the milestones would be the creation of a CCBE subgroup of migration law experts to deal with the project’s policy issues.

3

EU

Projects

COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE WWW.CCBE.EU

Vasileios StathopoulosProject Assistant stathopoulos@ccbe.eu

Alonso Hernández-Pinzón Senior Legal Advisor and Project Manager pinzon@ccbe.eu

For further information:

CCBEInfo MAY 2014 / NO 36

After the CCBE published the Report on the Fact-Finding Mission to Kiev on 10-12 July 2013 regarding the

establishment of the new Bar Association in Ukraine and the disciplinary proceedings and decisions against Ukrainian advocates, further developments in the legal profession in certain regions of Ukraine raised our serious concern. The CCBE was informed

of problems of self-regulation in the Khmelnitsky and Chernigov regions, and specifically about violations of the advocates’ right to vote in, and stand for, regional bar elections. The majority of advocates in these regions were excluded from participation in advocates conferences and election of the regional bar’s officials. The CCBE experts found these developments extremely worrying, all the more since it affects a high number of advocates: in the Khmelnitsky region – 664 out of 843 advocates and in the Chernigov region - 482 out of 599 advocates.The CCBE made inquiries into the situation and prepared a number of conclusions and recommendations in the Follow-Up Report regarding the registration of advocates in the Unified Register. The CCBE experts believe that the pure formality of registration in the Unified Register should not be used as a tool to exclude advocates from the self-governing process and from participation in conferences. They also expressed their concerns regarding disciplinary proceedings against advocates and reiterated their fear for the independence of the Bar.

4COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE

WWW.CCBE.EU

CCBEInfo

•

current situation

The CCBE has received information about the high number of violations of lawyers’ rights in the last few months. In particular, Ukrainian lawyers have faced harassment and physical violence, criminal proceedings initiated or conducted against lawyers in breach of the law, including when lawyers were detained or searches were conducted in their homes and offices. In serious breach of the Law on the Bar and Advocacy, advocates were questioned on their client cases and an advocate was prevented from assisting her client during investigative actions. The CCBE sent a letter of concern to Ukrainian authorities regarding this matter.

On 25 February 2014, the CCBE sent a letter of support to the Union of Advocates of Ukraine to express our sympathy with the Ukrainian legal profession at a time of dramatic developments in the country and our deepest condolences over the loss of lives during the unrest in Kyiv.

In March 2014, the Ukrainian National Bar Association (UNBA) addressed a letter to the CCBE regarding the political situation in Ukraine. In its response to the UNBA, the CCBE expressed its solidarity with Ukrainian lawyers, but also shared concerns regarding the development of the legal profession in light of two recent CCBE reports on Ukraine.

The CCBE also sent letters of concern to the EU institutions, to Permanent Representations of the EU Member States, to the President of Russia and to the Ukrainian authorities, and called for diplomatic and peaceful solutions to the situation in Ukraine. The CCBE expressed its concern about the administration of justice and the life of advocates, particularly in Crimea, including their ability to carry out their activities without any hindrance.

Sieglinde GamsjägerSenior Legal Advisorgamsjaeger@ccbe.eu

For further information:

PECO HUMAN RIGHTS LETTERSGeorgia – Violence against lawyers: At the beginning of 2014, the CCBE received information from the Georgian Bar Association that a number of Georgian lawyers recently faced violence, professional hindrance and harassment from Georgian state officials while providing legal service to their clients. On 19 February 2014, the CCBE sent a letter to the Georgian authorities with a copy to the Georgian Ambassador to the European Union, in which it raised serious concerns regarding this matter.

Kosovo – Letter of support: On 31 March 2013, the CCBE sent letters to the authorities of Kosovo in order to express its support for the Kosova Chamber of Advocates’ proposal to amend the Law on Contested Procedure in order to achieve safety and quality of legal representation of the parties in court proceedings.

Russia – Threats to a lawyer: On 24 February 2014, the CCBE sent a letter of concern to the President of the Russian Federation regarding threats received by a lawyer who provided legal assistance to a crime victim.

•

MAY 2014 / NO 36

UKRAINE: FOLLOW-UP REPORT

MAY 2014 / NO 36

CCBEInfo

5COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE

WWW.CCBE.EU

The initiative for this study dates back to last year’s leaking of information about governmental surveillance programmes. These revelations in the

press by whistle-blowers and journalists, together with the expert evidence given during the hearings of the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE), admissions by authorities, and the lack of denial with respect to certain allegations, have resulted in compelling evidence of the existence of far-reaching, complex and highly technologically advanced systems designed by US and some Member States’ intelligence services to collect, store and analyse communication data from citizens around the world which have been collected, stored and mined on an unprecedented scale, and in an indiscriminate and apparently non-suspicion-based manner. Though data-driven technologies may bring numerous benefits, they also create a number of specific new problems that have to be addressed, notably those concerning the legality of the interference with fundamental rights.

Such interference becomes particularly hazardous when the data and communications accessed by governments are those that have been granted special protection by the legislator. This is clearly the case in relation to communications between lawyers and their clients. In all EU Member States, the law protects from disclosure information communicated in confidence between lawyer and client. This principle – usually referred to as ‘professional secrecy’ or ‘legal professional privilege’ – has since long been recognised by the European Court of Justice in the AM&S case (C-155/79).

What makes this debate really important to the CCBE is the threat of the exposure of professional secrets by indiscriminate, non-suspicion-based surveillance. Information that once would have been exchanged and afterwards kept in the lawyer’s office, literally under lock and key, is being transmitted between lawyer and client by electronic means over the internet, and, increasingly, stored in the cloud. Such electronic data might, as it is transmitted by e-mail or stored, be literally anywhere in the world and vulnerable to being intercepted and read by not only the security agencies of the home state, but also foreign powers, whether “friendly” or not. This entails novel and unprecedented risks for the confidentiality, integrity and availability of the relevant communications.

The adopted CCBE study is concerned with the question of the extent to which, in different European jurisdictions, lawyers’ electronic data is susceptible to governmental access, and the rules and conditions surrounding such access. The study first gives a short overview of regulations in different jurisdictions. Following this national-level analysis, a short overview is provided of the most obvious similarities in the regulations. The report contains a number of conclusions and recommendations for common actions.

MAIN CONCLUSIONS

In princicple, the regulatory regimes developed independently by all of the jurisdictions which have been surveyed in the study reflect the fundamental norm of prefessional secrecy in their respective rules applying to the conduct of searches and seizure of evidence in lawyers’ premises. Whatever the diversity amongst such systems (and there is wide diversity) they all share this value as a common core.

However, the rules have not always kept up with changing technology. Therefore, in some (though by no means all) jurisdictions, data in electronic form held in the premises of an IT provider on behalf of a lawyer enjoys less protection than such data stored in the lawyer’s own office. The CCBE study does not see any justification for such a distinction.

Secondly, insofar as the rules relating to the physical world of a lawyer’s office are concerned, if there are special provisions that take into account, for example, the attendance of representatives of the lawyer’s bar at searches of his office, then an analogous provision should be made for virtual searches.

In view of the above, the study concludes with the main principle that protections granted in the paper world should also be granted in the electronic world.

Moreover, although the study recognises that bringing wiretapping controls up to the standards of controls over physical searches would be a huge legislative task for each Member State, the regime put in place by Member States should guarantee the inviolability of data and other evidence falling under the principle of professional secrecy.

CCBE Comparative Study on Governmental Surveillance of Lawyers’ Data in the Cloud

On 4 April the CCBE adopted a Comparative Study on Governmental Surveillance of Lawyers’ Data in the Cloud.

• For further information:

Simone CuomoSenior Legal Advisorcuomo@ccbe.eu

Institutions and instruments of nation states are inadequately equipped to deal with issues such as the global economy, climate change and the

internet; and traditional international law cannot provide for timely and comprehensive solutions. To this effect, we increasingly see international “soft law” approaches being partially intertwined with classical legal instruments.

Although the CCBE CSR Committee has been researching this field for over ten years, the legal profession is still in the early stages regarding CSR, where some large multijurisdictional law firms report regularly on their CSR policies and developments, while other law firms may sign up to the UN Global Compact. We are progressively seeing more law firms integrating CSR into their project finance and mining departments, or via the development of human rights divisions or multidisciplinary teams. In fact, the European Commission explicitly stated in its Strategy Paper of October 25, 2011, that it expects all businesses (which would include law firms and bars and law societies) to respect human rights.

In the legal profession, lawyer-client privilege and confidentiality rules provide lawyers with a unique advantage compared to consulting firms. In the implementation of a CSR policy or an audit, sensitive information may be at stake. In advising clients on CSR, the questions can be diverse and the situations complex, with regard to both the factual as well as legal side. A lawyer must clarify with their client whether they expect the lawyer to provide advice on hard law, as well as soft law instruments. Many clients these days – particularly large multinational ones – expect their lawyers to be competent in soft law issues. A lawyer should clarify as soon as possible with their insurance company on whether advice on soft law is covered by its insurance policy, especially when it is not restricted to national or EU-instruments.

Clients also envisage that lawyers and law firms, as suppliers of services, will comply with their CSR policies, the requirements of which are often not adequate for the specific role and function of the lawyer/law firm. Consequently, a law firm may develop its own CSR programme that corresponds to its size, risk profile and confidentiality requirements. If the legal profession does not proactively embrace CSR, it runs the risk that CSR requirements will be imposed on the legal profession either by clients, as part of their supply chain management, or by political bodies, which may not be sensitive to the specific role and challenges of the legal profession. In this area, lawyers trained in national, EU and international law are best equipped to assist in the development of new governance regimes that answer CSR challenges. Ultimately, as more clients prefer law firms with

CSR programmes in their tender procedures or when they staff their panels, these programmes offer a competitive edge in the war for talent.

6WWW.CCBE.EU

CCBEInfo

COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE

Charting a Legal Course in Corporate Social ResponsibilityThe Corporate Social Responsibility (CSR) movement in the legal field is a reaction to global businesses operating with insufficient global laws.

•

For further information:Birgit Spiesshofer Chair, Corporate Social Responsibility Committeebirgit.spiesshofer@dentons.com

CCBE CSR COMMITTEETHEN: NOW:

2002 (established) 2014• 5 members (formerly,

the “CSR Working Group”)

• Studied CSR implications for bars, law societies and lawyers

• 17 members from multijurisdictional law firms, medium-sized and small law firms

• Regional coverage includes Austria, Belgium, Finland, France, Germany, Greece, Italy, Luxembourg, Poland, Spain, Sweden and the United Kingdom

• Provides information on definitions and basic concepts, as well as international, EU and national CSR initiatives

PUBLICATIONS• Corporate Social

Responsibility and the Role of the Legal Profession, September 2003

• Update 1, April 2005.• Update 2, June 2008• CSR Developments

at a National Level, January 2013

• Corporate Social Responsibility and the Legal Profession (“Guidance I”), February 2013

• Guidance II, February 2014, follow-up on questions from Guidance I and specific recommendations/ considerations for bars and law firms.

LATEST CSR NEWS• Guidance II: Its purpose is to alert lawyers, bars and law

societies to the new opportunities and challenges of CSR and highlight practical issues which require consideration and which offer bars and law societies the opportunity to give leadership and guidance on these matters. It also highlights the issues of concern for bars and law societies and suggests areas in which their leadership and guidance is desirable.

• Amendment to the Accounting Directive: requests that large companies report on non-financial (CSR) factors concerning not only their own business but also their business relationships, including suppliers and law firms.

MAY 2014 / NO 36

In view of the steps currently being undertaken to ratify the Hague Convention on Choice of Court Agreements1, which concluded on 30 June 2005, the CCBE issued a statement on 27 February 2014 that strongly encourages the European Union to ratify the Hague Convention on Choice of Court Agreements

From the very beginning, the CCBE welcomed the Hague Convention on Choice of Court Agreements2 and still recognises the need in transnational transactions for enforceable choice of court agreements and the judgments resulting from these. The CCBE is convinced that this Convention will promote international trade and thus will enhance, by virtue of its uniform rules, the judicial cooperation and, even more, the enforcement of foreign judgments.

1See http://www.hcch.net/index_en.php?act=conventions.text&cid=982See CCBE response on the Convention on Choice of Courts Agreements, April 2004

For further information:

Simone CuomoSenior Legal Advisorcuomo@ccbe.eu

•

CCBE STATEMENT ON THE HAGUE CONVENTION ON CHOICE OF COURT AGREEMENTS

CC

BE

Calendar

7WWW.CCBE.EU

CCBEInfo

7COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE

WWW.CCBE.EU 7COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE

WWW.CCBE.EU

Dates to RememberMay

22-25 IBA Bar Leaders Meeting and Council Meeting , Brussels - Aldo Bulgarelli, Jonathan Goldsmith

23 40th Anniversary of the Austrian Bar, Vienna - Aldo Bulgarelli

29-31 Macedonian Advocacy: 69 years - Aldo Bulgarelli

29-31 FBE General Congress, Vienna - Michel Benichou

June

13-14 113th Lawyers Day of the Swiss Bar Association, Lausanne - Aldo Bulgarelli

17 Russian Federal Chamber of Lawyers Annual International Lawyers Conference, St. Petersburg - Aldo Bulgarelli

20 CCBE Standing Committee Meeting

22-24 Three Bar Meeting , China - Aldo Bulgarelli, Maria Ślązak, Jonathan Goldsmith

26-27 European Commission Workshop: Building Upon Good Practices in European Judicial Training , Brussels - Jonathan Goldsmith

26-28 Annual DAV Conference, Stuttgart - Aldo Bulgarelli

July

3-4 23rd Plenary Meeting - European Commission for the Efficiency of Justice - Simone Cuomo

13-15 Meeting between ABA-IBA-UIA-CCBE, Verona - Aldo Bulgarelli, Maria Slazak, Jonathan Goldsmith

August

8-10 ABA Annual Meeting , Boston - Aldo Bulgarelli, Jonathan Goldsmith

MAY 2014 / NO 36

8

CCBEInfo

COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE WWW.CCBE.EU

EU

Cou

rts

MAY 2014 / NO 36

A practical guide for lawyers appearing before the European Court of Human Rights (ECHR or the “Court”) was officially published on 23 April 2014 and officially launched on 28 April 2014 during a ceremony attended by Dean Spielmann, President

of the ECHR.This guide is directed at lawyers intending to bring a case before the ECHR. The guide,

which is a list of questions and answers, contains information and practical advice for proceedings before national courts prior to application to the ECHR, before the Court itself, and during the enforcement of the Court’s judgments.

A number of questions are covered in the handbook, including: at what stage of proceedings before national courts should human rights violations be pleaded under the European Convention of Human Rights; how to submit an application to the Court; the technical aspects of proceedings; and the role of a lawyer once a judgment has been rendered. Also included are reference to tools and resources available for parties and their lawyers.

During the launching ceremony for the guide, CCBE President, Aldo Bulgarelli, underlined that European lawyers should be aware of how to raise violations of fundamental rights at the national level, and how to bring a case before the European Court of Human Rights. He also noted that the guide would be useful for national judges.

The ECHR President, Dean Spielmann, emphasised the importance of the guide given the recent entry into force of a new Rule 47 (on 1 January 2014) of the Rules of the Court, which introduces stricter conditions for submitting an application to improve the efficiency of the ECHR.

Laurent Pettiti, Chair of the CCBE Permanent Delegation to the ECHR, recalled that the guide was obviously not intended to increase the workload of the Court, but to highlight that a good case should be won before the national courts. Mr Pettiti also remarked that the guide covers the often unheralded role of the lawyer in the enforcement of judgments.

The guide is available on the CCBE website and will soon be available on the ECHR website. Booklet versions will be available in the foyer of the Court of Strasbourg.

For further information:Karine MétayerSenior Legal Advisormetayer@ccbe.eu

A GUIDE FOR LAWYERS: The European Court of Human Rights

•

•

CCBE CONFERENCE: “EU COURTS – LOOKING FORWARD”

The CCBE organised a conference on 28 April on the “EU Courts – Looking Forward”. The conference brought together representatives from the judiciary, Member States, European institutions, practitioners, academics and many more. The conference discussed issues ranging from the workload of the Court, the appointment of

judges, judicial protection/interim relief, and procedural developments. The CCBE was delighted to have such distinguished speakers, chairpersons, panelists and audience members. In particular, the CCBE would like to thank Koen Lenaerts, Vice-President of the Court of Justice, Dean Spielmann, President of the European Court of Human Rights and Marc Jaeger, President of the General Court for their participation.

Peter McNameeSenior Legal Advisormcnamee@ccbe.eu

For further information:

9COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE WWW.CCBE.EU

CCBEInfo1. What does your committee do and how long have

you been the Chair of the Committee?HM: The Permanent Delegation to the Court of Justice of the EU aims to fulfil a liaison role with the Court of Justice, to stay in contact with the members of the Court. It also seeks to make constructive proposals for improvement: of conditions for the legal profession when pleading at the Court; of the litigation process at the Court; and of any matters drawn to our attention by the national delegations. It meets through a combination of telephone conferences and face to face meetings, circa 4-6 times per year, including from time to time meetings with the Court. I have been Chairman since 2010 but I am very fortunate in having a group of expert and enthusiastic participants in the work of the Committee.

2. Tell us a bit about yourself and your regular area of practice.HM: I am an English barrister practising mainly in the fields of EU and International Law. I therefore do cases both before the English courts and the EU courts and I also work with colleagues from other Member States on specialist EU cases before their national courts.

3. How would you rate the current judicial architecture of the EU? HM: I believe that the current judicial architecture is essentially sound. The question is how to deal with an ever increasing demand for the services of both courts. Current judicial architecture (Article 257 TFEU) indicates that specialised courts are to be set up to deal with particular classes of case. The General Court has a significant backlog of cases and an initiative to grant an increase in the number of Judges has just failed due to a group of Member States refusing to accept that the additional judges should be appointed on merit. An alternative proposal is urgently required, perhaps going back to the General Court’s original suggestion of a specialised court for trade marks.

4. Do you think there is a reluctance to put more resources in the Courts? If so, why?HM: What appears to occur is that when new legislation is passed, there is no analysis of the likelihood of this legislation giving rise to judicial challenges and therefore work for the General Court and Court of Justice. The first step is to seek to change this situation because it is not apparent at present that the Council or Commission regards judicial resources as a relevant issue in passing legislation. A second issue arises from the request for more judges for the General Court. Some Member States recognise the current backlog but want to be more convinced that there is a lack of resources. This does not seem an unreasonable request.

5. What do you think has been the greatest innovation in the last 10 years of the Courts?HM: The greatest recent innovation is the ability to file pleadings online, through the e-Curia system. What is needed is a further innovation to introduce active case management by a single procedural judge nominated for

each case. National judges should provide training on how case management helps to increase throughput.

6. How do you find the e-curia system [electronic filing of pleadings], which the court introduced some time ago?HM: In principle this is a great innovation, removing the need to provide multiple hard copies of documents. However it is most useful for larger litigators with the structures and volume of cases to manage the system. A particular problem is that counsel are required to log in to the system at least once per week to check for new procedural documents. For an occasional litigator before the Court, a weekly check in the context of cases where the gap between procedural steps can extend to years, not weeks or months, this is a heavy obligation.

7. There were over 200 high-level attendees at a recently organised CCBE conference in Brussels on the subject “EU Courts – Looking Forward”? Why do you think it was so well attended?HM: What was particularly interesting was the range of attendees: national judges, EU judges, agents from EU institutions and Member States and practising lawyers. In a sense, what one had at the Conference was a form of extended Users’ Committee for the EU Courts. Too often, consultation and discussion takes place on an individual basis but without the involvement of other stakeholders. The success of the Conference is a strong indicator that a Users’ Committee is the way forward.

8. What was the outcome of the conference?HM: The outcome is still being explored but a Users’ Committee is on the cards. Given the failure of the recent Greek Presidency attempt to broker a system for appointing a new task force of extra judges for the General Court, another possible outcome is that the Council, Commission or even perhaps the CCBE might consider appointing a group of experts to make concrete proposals for improvements in the workings of the Courts.

9. Your committee drafted guidance for practitioners pleading before the Court of Justice – why did you think this was needed? HM: Most lawyers plead before the Court of Justice only once in their careers. Every new court has its particularities. Given that all citizens in the EU are free to select the lawyer of their choice, it seems right that each such lawyer should have all necessary assistance to present his/her client’s case to the best of his/her ability. Also, such guidance constitutes the opening of a dialogue with the Court on the purposes of the various procedural steps. For example oral hearings could be rendered considerably more useful if the Judges were more active in testing the arguments of counsel.

10. What would you do if you were not a lawyer?HM: Either teaching mathematics and languages or running a charity to benefit the disadvantaged.

INTERVIEW: 10 QUESTIONSHugh Mercer QC (United Kingdom)

Chair of The Permanent Delegation to the Court of Justice of the EU

MAY 2014 / NO 36

10COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE

WWW.CCBE.EU

CCBEInfo

•

•

INSURANCE CONTRACT LAW:

Expert report pinpoints obstacles to cross-border trade

An expert group set up by the European Commission to examine barriers to cross-border trade in insurance law across Member States delivered its comprehensive report on 27 February 2014. The report finds that differences in contract laws impede the cross-border supply of insurance products by increasing costs, creating legal uncertainty

and making it hard for consumers and businesses to take out insurance in other EU Member States. At present, a citizen moving to work in another EU country may have to take out a new car insurance policy, or face problems having their rights under a private pension plan recognised if taken out in his country of origin. Similarly, companies with branches in several EU countries may have to get separate policies under different conditions in each country instead of a single policy for their entire EU business.

The CCBE took part in the expert group and contributed mainly to those sections of the report that deal with the problems lawyers may face with regard to obtaining a professional indemnity insurance that covers cross-border services.

The European Commission will now follow up on the report by consulting consumers, businesses and the insurance sector on possible solutions.

On the same topic, the European Commission also released a Working Document on 31 March dealing with access to insurance for services provided in another Member State. This document also addresses some of the problems lawyers may face as regards access to professional indemnity insurance for cross-border services.

This initiative is a follow-up to the public consultation the Commission (DG MARKT) held last summer to better understand whether the market itself offers sufficient solutions to make the Services Directive work in practice in respect of insurance obligations. The result of this public consultation is that cross-border activities (secondary establishment and, even more significantly, cross-border provision of services) still face important obstacles due to disparities in insurance obligations.

For further information:

Simone CuomoSenior Legal Advisorcuomo@ccbe.eu

•

MAY 2014 / NO 36

These papers were prepared in response to proposals from the European Commission which aim to strengthen procedural safeguards

for suspects and defendants in criminal proceedings. The proposals comprise three Directives and two Recommendations (see sidebox). The objective is to guarantee fair trial rights for all citizens, wherever they are in the European Union.

The CCBE has been following this issue for many years, and we welcome the efforts of the Commission to promote these essential measures. With regard to the proposals for 3 Directives, the CCBE believes that it is of fundamental importance that these measures be completed through the legislative process and go beyond mere proposals to actual real and effective legislation.

Two of the proposals are Recommendations which cannot be changed, as they are not part of a legislative consultation process.

Safeguards for Citizens in Criminal ProceedingsDuring its Standing Committee on 4 April, the CCBE approved 5 position papers in the area of Criminal Law.

CRIMINAL LAW POSITION PAPERSDirectives

• To strengthen the presumption of innocence and the right to be present at trial in criminal proceedings

• Special safeguards for children suspected or accused of a crime

• The right to provisional legal aid for citizens suspected or accused of a crime and for those subject to a European Arrest Warrant

recommenDations• Procedural safeguards for vulnerable

people suspected or accused in criminal proceedings

• The right to legal aid for suspects or accused persons in criminal proceedings

Peter McNameeSenior Legal Advisormcnamee@ccbe.eu

For further information:

The 2006 counter-terrorism Data Retention Directive relates to telecoms and internet connections

On 26 February 2014 the European Parliament backed the proposal for an optional EU sales law which will give businesses and consumers the choice of using a single

set of contract law rules for cross-border sales contracts. The optional law is intended to help small and medium enterprises to market their goods across Europe and promote consumer confidence in the internal market by offering a high level of protection. The European Parliament has limited the scope of the original proposal to distance contracts, notably online contracts. The CCBE has published a number of position papers in the past

strongly favouring the proposal for a Common European Sales Law and therefore welcomes the Parliament’s vote.

To become law the proposed Regulation will now have to be adopted by the Council of Ministers using the “ordinary legislative procedure” (co-decision). On 6 March the ministers in the Justice & Home Affairs (JHA) Council held an orientation debate on the way forward for the proposal. The next JHA Council meeting is on 6-7 June 2014, and it seems that they will not issue a common position before then, and might even delay it until later.

The EU Court of Justice (ECJ) issued a severe and unprecedented judgement (Joined Cases C-293/12 and C-594/12), on 8 April, invalidating - in its entirety - the

2006 counter-terrorism Data Retention Directive relating to telecoms and internet connections that was pushed by member states in reaction to the 11 September 2001 terrorist attacks in the United States, followed by those in Madrid in 2004 and London in 2005.

The Court of Justice of the European Union was asked to examine the validity of the Data Retention Directive, in particular in the light of two fundamental rights under the Charter of Fundamental Rights of the EU, namely the right to respect for private life and the right to the protection of personal data.

As expressed in its recommendations published in September 2006, the CCBE was opposed to the Data Retention Directive which, on the one hand, infringes professional secrecy since it does not differentiate between various data, and on the other hand, includes numbers of gaps and uncertainties. The two particular concerns of the CCBE have been that professional secrecy is not guaranteed when governments have eventual access to the retained data, and that prior judicial authorisation is not required before governments have access to the data.Overview of the judgment – potential incompatibility with professional secrecy obligations

The Court observes that the data to be retained make it possible to: (1) know the identity of the person with whom a subscriber or registered user has communicated and by what means; (2) identify the time of the communication as well as the place from which that communication took place; and (3) know the frequency of the communications. This data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, etc.

The Court takes the view that, by requiring the retention of those data and by allowing the competent national authorities to access that data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data.

The Court considers that retention of data for the purpose of their possible transmission to the competent national authorities genuinely satisfies an objective of general interest, namely the fight against serious crime and, ultimately, public

security. However, the Court is of the opinion that the wide-ranging and particularly serious interference of the directive with the fundamental rights at issue is not sufficiently circumscribed to ensure that that interference is actually limited to what is strictly necessary. In this respect, the Court points out that in general, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made under the objective of fighting against serious crimes, applies even to persons whose communications are subject, according to rules of national law, to the obligation of professional secrecy.

The Court also finds that the directive does not provide for sufficient safeguards to ensure effective protection of the data against the risk of abuse and against any unlawful access and use of the data. It notes, inter alia, that the directive permits service providers to have regard to economic considerations when determining the level of security which they apply (particularly as regards the costs of implementing security measures) and that it does not ensure the irreversible destruction of the data at the end of their retention period.

Lastly, the Court states that the directive does not require that the data be retained within the EU. Therefore, the directive does not fully ensure the control of compliance with the requirements of protection and security by an independent authority, as is, however, explicitly required by the Charter. Such a control, carried out on the basis of EU law, is an essential component of the protection of individuals with regard to the processing of personal data.Impact of invalidation

Since the directive has been invalidated in its entirety – an extremely rare occurrence – this text is deemed to have never existed. Given that the Court has not limited the temporal effect of its judgment, the declaration of invalidity takes effect from the date on which the directive entered into force. As a result, it is no longer applicable. The judgement does, however, not apply to nationally implemented laws, and at this stage it still remains to be seen what measures will be taken in response to the judgment by the EU institutions as well as by individual Member States. The CCBE IT Law Committee will monitor any developments in this respect and consider whether the CCBE should take any action.

Optional European Sales Law Receives Strong Backing by European Parliament

11WWW.CCBE.EU

CCBEInfo

COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE

Retention Directive Declared Invalid By The ECJ

For further information:

Simone CuomoSenior Legal Advisorcuomo@ccbe.eu

•

MAY 2014 / NO 36

The new rules aim to give people more control over their personal data and to make it easier for firms to work across borders, by ensuring

that the same rules apply in all EU member states.

To better protect EU citizens against surveillance activities such as those unveiled since June 2013, MEPs amended the rules to require any firm (e.g. a search engine, social network or cloud storage service provider) to seek the prior authorisation of a national data protection authority in the EU before disclosing any EU citizen’s personal data to a third country. The firm would also have to inform the person concerned of the request. Firms that break the rules could face fines of up to €100 million, or up to 5% of their annual worldwide turnover. The European Commission had proposed penalties of up to €1 million or 2% of worldwide annual turnover.

The new rules should better protect data on the internet. They include a right to have personal data erased, new limits to “profiling” (attempts to analyse or predict a person’s performance at work, economic situation, location, etc.), a requirement to use clear and plain language to explain privacy policies. Any internet service provider wishing to process personal data would first have to obtain the freely given, well-informed and explicit consent of the person concerned.

The initiative for the revision of the data protection regime dates back to November 2010 when the Commission launched a public consultation following the publication of its Communication called “A comprehensive approach on personal data protection in the European Union”. In its response to that consultation, the CCBE urged the European institutions to take into account a number of guidelines when shaping Europe’s legal framework on the fundamental right to protection of personal data.

On 7 September 2012, the CCBE adopted its position on the data protection reform package proposed by the European Commission in January 2012 and consisting of a General Data Protection Regulation and a Data Protection Directive.

Regarding the proposed General Data Protection Regulation, the CCBE had some comments based on the need to respect professional secrecy and independence as core values of the lawyers’ profession to safeguard the rights of citizens, and self-regulation as a corollary of independence.

State of play in the legislative processThe plenary vote of the Parliament means that

its position will not change even if the composition of the Parliament changes following the European elections in May. It follows a positive opinion from the leading Civil Liberties, Justice and Home Affairs Committee in October 2013. To become law, the proposed Regulation has to be adopted by the Council of Ministers using the “ordinary legislative procedure” (co-decision). The European Parliament stands ready to negotiate with the Council of the EU as soon as the Council defines its position.

On 4 March 2014, Ministers in the Council discussed the data protection reform, focusing on its territorial scope and on aspects relating to international transfers (MEMO/14/144 and SPEECH/14/175). Ministers broadly supported the principle that non-European companies, when offering goods and services to European consumers, will have to apply the EU data protection law in full. The next meeting of Justice Ministers on the data protection reform will take place in June 2014.

At a summit focused on the digital economy held on 24 and 25 October 2013 (see Conclusions), European heads of state and government committed to a “timely” adoption of the new data protection legislation.

12WWW.CCBE.EU

CCBEInfo

COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE

DATA PROTECTION REGIME ADOPTED BY THE EUROPEAN PARLIAMENT

On 12 March 2014, the European Parliament gave its strong backing to both of the European Commissions’ data protection proposals.

•

MAY 2014 / NO 36

For further information:

Simone CuomoSenior Legal Advisorcuomo@ccbe.eu

WWW.CCBE.EUCOUNCIL OF BARS AND LAW SOCIETIES OF EUROPE 13

MAY 2014 / NO 36

CCBEInfo

The report considers it “crucial that the professional confidentiality privilege of lawyers (…) is safeguarded against mass surveillance activities” and adds that “any uncertainty about the confidentiality of communications between lawyers and their clients could negatively impact on EU citizens’ right of access to legal advice and access to justice and the right to a fair trial.” The Parliament also

introduces a “Digital Habeas Corpus” to protect fundamental rights including the rule of law and the confidentiality of lawyer-client communications.

In a press release from 17 March 2014, the CCBE strongly welcomed the adoption of this resolution as it acknowledges the need to protect lawyer-client confidentiality in a democratic society based on the rule of law in relation to government surveillance programmes. The CCBE hopes this constitutes a first step towards effective measures to rein in the abuse of power occasioned by mass electronic surveillance directed at citizens and their lawyers, and urgently encourages the Parliament and the Council of Ministers to take the report into account when they resume work on data protection after the elections.

In its resolution the Parliament also agreed to withhold its consent to the final Transatlantic Trade and Investment Partnership (TTIP) deal with the US unless it fully respects EU fundamental rights, adding that data protection should be ruled out of the trade talks.

MEPs also call for the “immediate suspension” of the Safe Harbour privacy principles (voluntary data protection standards for non-EU companies transferring EU citizens’ personal data to the US). These principles “do not provide adequate protection for EU citizens” say MEPs, urging the US to propose new personal data transfer rules that meet EU data protection requirements.

In a statement from 14 October 2013, the CCBE previously expressed its concern over the revelations of systematic government surveillance of European citizens, and called on the European institutions to defend the confidentiality of lawyer-client communications as a key element of the rule of law.

Moreover, in December 2013, the CCBE participated in the LIBE Committee Inquiry on Electronic Mass Surveillance of EU citizens. As a result, the draft report included the protection of professional secrecy among the seven actions in the “Priority Plan”, and several amendments to the report giving greater visibility to the protection of lawyer-client confidentiality were thus included in the adopted resolution.

The CCBE Strongly Welcomes European Parliament’s Resolution On Electronic Mass Surveillance

On 12 March 2014 the European Parliament approved a resolution wrapping up their six-month inquiry on electronic mass surveillance of EU citizens led by the Committee on Civil Liberties, Justice and Home Affairs (LIBE).

•

2014 CCBE MEMBERS(45 members)

On 17 May, the CCBE welcomed its 45th member: The Bar of Lawyers and Notaries of the Republic of San Marino

45

45 San Marino42 Ukraine

WWW.CCBE.EUCOUNCIL OF BARS AND LAW SOCIETIES OF EUROPE

COUNCIL OF BARS AND LAW SOCIETIES OF EUROPERue Joseph II, 40

1000 Brussels, BelgiumT. +32 (0)2 234 65 10 • F. +32 (0)2 234 65 11

Contact us with comments or feedback: ccbe@ccbe.eu

Editor: Dawn Turek, turek@ccbe.eu

Editorial Board: Simone Cuomo Alonso Hernández-Pinzón Hugo Roebroeck

Sieglinde Gamsjaeger Peter McNamee Alexandre Mahé (translator)

Karine Métayer Intern: Ekaterina Voronina

The Council of Bars and Law Societies of Europe (CCBE) represents the bars and law societies of 32 member countries and 12 further associate and observer countries, and through them more than 1 million European lawyers. Founded in 1960, the CCBE is a non-profit organisation that advances the views of European lawyers and defends the legal principles upon which democracy and the rule of law are based.

Follow us on:Online resources:www.ccbe.eu

www.twitter.com/CCBEinfo

14

Copyright 2014 © Council of Bars and Law Societies of Europe. All rights reserved.

MAY 2014 / NO 36

CCBEInfoUPCOMING CCBE EVENT:

#clientdata

@ccbeinfo

10 December 2014

Mass Governmental Surveillance

Your Data, Your Privacy:IT MATTERS TO YOU

www.ccbe.eu/lawyersdayCONSEIL DES BARREAUX EUROPÉENS COUNCIL OF BARS AND LAW SOCIETIES OF EUROPE-

Eu

rop

ean

law

yers

promoting law & justice -

-Les avocats européens pour

ledr

o it&

laju

sti c

e-

PROTECTING citizens’ privacy

and UPHOLDING

the rule of law

DEFENDING citizens’ rights:

Communications between lawyers and

clients must be confidential

TWITTER

Lawyer-Client Confidentiality

EUROPEAN LAWYERS DAY