CCBE-INFO May 2007 / N°18

Représentant les avocats d’Europe Representing Europe’s lawyers Content

Services Directive ...... 2 Money Laundering ...... 2 Commission report ...... 2 Competition ...... 2 Conveyancing services study ...... 2 CCBE Human Rights Award for European Lawyers ...... 3 What is the CCBE Human Rights Award? ...... 3 Procedure for the nomination of candidates for the CCBE Human Rights Award ...... 3 Training ...... 4 PECO ...... 4 CCBE Membership – Romania – Legal Advisers ...... 4 Ukraine ...... 4 Moldova ...... 4 Access to Justice Committee: The attachment of bank accounts ...... 4 Criminal law ...... 5 CCBE letter on procedural safeguards ...... 5 Provision and quality of legal interpreting and translation ...... 5 Corporate Social responsibility ...... 6 Questionnaire on CSR ...... 6 European Contract Law ...... 6 Family Law ...... 7 GATS ...... 7 Mutual Recognition Agreement (MRA) with the American Bar Association ...... 7 International Private Law ...... 7 IT-Law ...... 8 Establishment of EU lawyers in Luxembourg - Update ...... 8 Multi-jurisdictional Law Firms Committee ...... 8 Professional Indemnity (PI) Insurance ...... 9 Social Security ...... 9 Editor: Peter Mc Namee

Editorial Board: Birgit Beger Sieglinde Gamsjäger Karine Métayer Peter Mc Namee

Editorial Secretaries: Maxime Servotte (translator) Sophie Testaert (layout) ccbe-info published 4 times / year

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Services Directive

In order to help Bars and Law Societies with the implementation of the Directive on Services in the Internal Market (O.J. L 376/36 du 27.12.2006 p. 36), the CCBE has adopted an internal commentary on the Directive. The commentary, which is not public at this stage, is meant to be an evolving document, which might be further completed and amended.

National Bars and Law Societies are encouraged to get in touch with their national competent authorities (Ministries of Justice and Finance etc) in order to ensure that the implementing legislation of the Member States respect and recognise the prevalence of the existing lawyers’ Sectoral Directives and of the current lawyers’ acquis communautaire.

For further information, please contact Karine Métayer ([email protected]).

Money Laundering

Commission report

The European Commission has published its report on the impact of the 2001 Money Laundering Directive on the legal profession. The report is based on responses from the notarial and legal professions to questionnaires sent out by the Commission. The CCBE has examined the Commission’s report and has submitted a response (which is available on the CCBE’s website). The CCBE also participated in a meeting on 13 February 2007 with the Commission and EU Member States in order to discuss the Commission report.

The CCBE believes that reliance upon the explanations set out in the Report for either the low level of reporting by legal professionals or the perceived reluctance on the part of legal professionals to report, should not, in the absence of a more in-depth and scientific examination of the issues involved, justify any substantive conclusion.

It will be recalled that the 2001 Directive imposed for the first time reporting obligations on lawyers. The CCBE at the time heavily lobbied the institutions against the applicability of reporting obligations on the legal profession, since such obligations violate the principle of client-confidentiality which exists between a client and lawyer. The CCBE continues to hold the view that the right of a client to consult a lawyer in confidence is a fundamental right and is constitutionally protected in a number of countries.

For further information, please contact Peter Mc Namee ([email protected])

Competition

Conveyancing services study

The CCBE has been closely following these last months a Commission funded comparative economic study into the impact of professional services regulation on the functioning of the European conveyancing services market. The German Centre of European Law and Politics (ZERP), which was commissioned to undertake the study, has presented some preliminary findings at the competition conference concerning liberal professions in December 2006. The CCBE, through its member Bars and Law Societies, has tried to give some input into the final stages of the drafting process of the study, and the CCBE also raised serious concerns with regard to the methodology and timing of the study. The study is due to be published at the end of May/beginning of June 2007.

For further information, please contact Sieglinde Gamsjäger (gams- European Commission [email protected])

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CCBE Human Rights Award for European Lawyers

The CCBE has decided to institute a Human Rights Award for European Lawyers. The Award will be granted for the first time in 2007.

What is the CCBE Human Rights Award?

The objective of the CCBE award is to honour distinguished lawyers who have demonstrated outstanding com- mitment and sacrifice in order to uphold fundamental values. It will also be an effective and useful tool to raise awareness of the core values of the legal profession.

The award, which in principle will be granted yearly, consists of a certificate delivered by the CCBE, the true award being the public recognition of the work undertaken by the lawyer selected. The certificate will be officially delivered to the winner by the CCBE President at the Plenary Session. The CCBE will cover the travelling and accommodation expenses for collecting the prize.

The CCBE award shall be granted to a lawyer who has brought honour to the legal profession by upholding the highest values of professional and personal conduct in the field of human rights. The field of human rights shall be interpreted in the broadest way (this shall allow, for example, the possibility to grant the award to a lawyer who is the victim of human rights violations).

The award shall usually be granted to a European lawyer or lawyers’ organisation.

Procedure for the nomination of candidates for the CCBE Human Rights Award

Candidates for the award shall be nominated only through the CCBE’s member or observer Bars. Candidates are to be nominated by the CCBE delegations by 31st May 2007.

The CCBE Human Rights Committee will examine the nominations in June/July 2007.

The recommendations of the Human Rights Committee will be submitted to the CCBE Standing Committee in September 2007. The Standing Committee will select the winner for 2007.

The winner of the CCBE Award will be informed further to the decision taken at the CCBE Standing Committee. S/he will receive a formal invitation to collect personally the prize at the CCBE Plenary Session.

The prize will be officially presented to the winner by the CCBE President this year at the Bruges Plenary Session on 23/24 November 2007 in Bruges.

For further information, please contact Karine Métayer ([email protected]).

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Training

The CCBE – through its Training Committee – is organising a conference on ‘Improving legal education and training in a converging Europe’ which will take place on 25-27 September in Warsaw, Poland. The conference will allow for presentation and discussion of current developments in the field of legal education and training of lawyers in Europe. It will deal with both university and professional training of lawyers and gather representatives from Bars and Law Societies, academics and training institutions from across Europe. More detailed information on the conference can be obtained at the following website address: (http://www.ccbe.org).

For further information, please contact Sieglinde Gamsjäger ([email protected])

PECO

CCBE Membership – Romania – Legal Advisers

The CCBE received an application for membership from the Romanian Legal Advisors College Union earlier this year. A rapporteur has been appointed to examine the application and also the situation of legal advisers across Europe. It is hoped to come to a decision on the application at the CCBE Plenary Session in November 2007.

Ukraine

The Justice Committee of the Ukrainian Parliament set up earlier this year a working group to deal with the law on the Bar. Three experts from the CCBE are part of this working group (Rupert D’Cruz, UK; Petar Petrov, Bulgaria; Marc Jobert, France). They will need to analyse the draft laws currently pending before the Ukrainian Parliament. The progress of work on this will very much depend on the political developments in the Ukraine. On 2 April 2007, the Ukrainian President, Viktor Yushchenko, ordered Parliament to be dissolved and called a snap election.

Moldova

The CCBE member Bars from Italy and Greece are jointly organising a conference for Moldovan lawyers which will take place on 1 June 2007 in Chisinau, Moldova. The Italian Bar Association will deal with “The free movement of lawyers between Italy and Moldova” at the conference. The Greek Bar Association will give a presentation on “The rights of lawyers defending their clients according to the ECHR requirements”. A number of Moldovan lawyers have also been invited to deliver speeches on these topics in order to provide an insight into the current situation and recent developments in Moldova.

For further information, please contact Sieglinde Gamsjäger ([email protected])

Access to Justice Committee: The attachment of bank accounts

As reported in CCBE INFO N°16, on 24 October 2006, the Commission adopted a Green Paper improving the efficiency of the enforcement of judgements in the European Union: The Attachment of Bank Accounts (COM (2006) 618) (SEC (2006) 1341).

The Green Paper on the Attachment of Bank Accounts addresses the problems of cross-border debt recovery risk which constitutes an obstacle to the free circulation of payment orders within the European Union and an impediment for the proper functioning of the Internal Market.

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The CCBE has prepared its response to the Green Paper on bank attachments which can be found at (http://www.ccbe.org).

For further information, please contact Birgit Beger ([email protected]).

Criminal law

CCBE letter on procedural safeguards

At the beginning of 2007, the CCBE sent a letter to the German Presidency, national ministries of Justice, European Commission and European Parliament concerning the lack of progress regarding the European Commission proposal for a Framework Decision covering the rights of suspects and defendants in criminal proceedings throughout the European Union.

The CCBE letter commented that it is shameful that there has been so little progress in the 4 years since publication of the Green Paper on procedural safeguards, and the publication of the Commission proposal on 28 April 2004. This proposal has been called for by the European Parliament ever since the adoption of the proposal for a European Arrest Warrant in September 2001.

The letter also stated that the CCBE believes that the imbalance which currently exists at the European level between the rights of the prosecution and the rights of the defence threatens to undermine confidence in the principle of mutual recognition.

The CCBE letter also pointed out that, in addition to the absence of promoting procedural safeguards for suspects and defendants in criminal proceedings, there are a number of organisations which have been established to promote cooperation in the field of criminal law at a European level from a prosecution point of view. There is no similar Community activity regarding the creation of an institution which would promote cooperation with regard to issues encountered by defence lawyers when faced with cross-border activities and “mutual recognition” requirements.

The CCBE urged that every effort be made to treat the issue of procedural safeguards with the proper attention and urgency that it deserves, and to ensure that proper consideration is given to the rights of the defence.

Provision and quality of legal interpreting and translation

The CCBE is participating in a project concerning procedural safeguards, and specifically the issue of the provision and quality of legal interpreting and translation. The project partners are developing a questionnaire on the provision and quality of legal interpreting and translation in all EU Member states. The CCBE’s role will be to dis- seminate the questionnaire to its members in order to receive the views of defence practitioners in the different EU Member States. The project is supported by the European Commision under the Agis programme and the partners consist of the Lessius Hogeschool (Antwerp, Belgium), the University of Alicante (Spain), the Institute of Linguists (UK) and representatives from the Dutch Ministry of Justice and the European Criminal Bar Association.

For further information, please contact Peter Mc Namee ([email protected])

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Corporate Social responsibility

Questionnaire on CSR

The CCBE Working Group on Corporate Social Responsibility (CSR) has sent a questionnaire to the CCBE member Bar and Law Societies on the issue of CSR. The questionnaire has arisen due to the CCBE Working Group observing an increasing need for the legal profession to be involved with the issue of CSR and the increased impact of CSR on the legal profession. Answers to the questionnaire will assist the Working Group in developing its future work programme.

For further information, please contact Peter Mc Namee ([email protected])

European Contract Law

On 8 February 2007, the European Commission issued a Green Paper on the review of the consumer acquis, COM (2006)744. The Green Paper addresses the review of the eight directives aiming at protecting consumers. A balance between the competitiveness of enterprises and a high level of consumer protection shall be achieved while ensuring strict respect for the principle of subsidiarity.

At the CCBE Standing Committee on 30 March 2007, the CCBE adopted a CCBE response to the Green Paper which was drafted by the CCBE European Contract Law working group under its Chairman, Prof. Dr.Graf von Westphalen (DE).

The majority of the CCBE believes that the best approach to the review of consumer legislation is a mixed approach combining the adoption of a framework instrument addressing horizontal issues that are of relevance for all consumer contracts, with revisions of existing sectoral directives whenever necessary. In addition, the CCBE believes that the scope of a possible horizontal instrument should apply to all consumer contracts, whether they concern domestic or cross-border transactions. One instrument for all consumer contracts would simplify the consumer acquis considerably for both consumers and enterprises. Finally, the majority of the CCBE believes that the level of harmonisation of the revised directives/the new instrument should provide for any revised legislation to be based on full harmonisation. However this should be subject to the important caveat that maximum harmonisation measures should not reduce the protection available to the consumer beyond an acceptable level. The full text of the CCBE response can be found at (http://www.ccbe.org).

The European Commissioner responsible for this topic, Meglena Kuneva, at the EU Presidency Conference on Contract Law in Stuttgart on 1 and 2 March 2007, noted that the Commission will continue to work on the long- term project of a Common Frame of Reference (CFR) and that the most directly concerned Commissioners, like her colleagues Franco Frattini – Vice-President and Commissioner for Justice, Freedom and Security, Günter Verheugen – Vice President and Commissioner for Enterprise and Industry and Charlie McCreevy – Commissioner for Internal Market and Services, will ensure the success of the CFR exercise.

The Internal Market Committee of the European Parliament held a hearing on the review of the consumer acquis on 10 April 2007. The partici- pants involved representatives from the European institutions, consumer and business organisations and professors. The CCBE briefly presented its view at the hearing, as outlined in the CCBE response to the Green Meglena Kuneva, European Commissioner Paper.

For further information, please contact Birgit Beger ([email protected])

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Family Law

The CCBE working group on Divorce has been re-named CCBE working group on Family Law since this describes its work much more accurately.

Among the current items of work for the CCBE Family Law working group is the consideration of a European Conference for Family lawyers, to be held in 2008. The CCBE working group has developed a theme for the conference and will submit a preliminary proposal to the CCBE Standing Committee in Ljubljana on 29 June 2007. To this end, the CCBE Family Law working group is also looking for potential partners for the conference organisation among lawyers’ organisations, law academies and related entities.

For further information, please contact Birgit Beger ([email protected]).

GATS

Mutual Recognition Agreement (MRA) with the American Bar Association

The CCBE GATS committee has commenced work on the wording of a potential Mutual Recognition Agreement (MRA) with the American Bar Association. The aim of the Agreement is to facilitate cross-border movement, whether it be for the temporary provision of services, or for permanent establishment, in the other’s jurisdiction. The Agreement would be a preliminary, though essential, step towards achieving a binding MRA on the recognition of educational and professional qualifications between the EU and the USA for the provision of legal services. It will outline the structure and essential conditions that the legal professions in the EU and the USA would like to see included in any future binding MRA. The final Agreement will reflect the outcome of profession-to-profession negotiations between the CCBE and ABA.

For further information, please contact Peter Mc Namee ([email protected])

International Private Law

As reported in CCBE INFO N°15 -17, there are currently two legislative proposals being discussed in the decision making process of the European Parliament and the Council of Ministers: a draft Regulation which converts the inter-governmental 1980 Rome Convention into EC legislation, COM (2005)650 (Rome I) and a modified draft regulation aiming to harmonise the rules on whose law applies in cross-border non-contractual civil disputes COM(2006)83, Rome II.

For Rome I, fifty amendments were tabled by the deadline (please see report on amendments at http://www.europarl.europa.eu/meetdocs/2004_2009/documents/ am/642/642976/642976en.pdf).Since the rapporteur, Maria Berger, is now Minister of Justice in Austria, a new rapporteur has been appointed, Cristian Dumitrescu (vice president of JURI/ PSE/ RO). A preliminary time-line foresees that the report is due to be adopted at the May plenary session of the European Parliament.

For Rome II, the European Parliament adopted its report on 18 January 2007 in sec- ond reading. (http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+ TA+P6-TA-2007-0006+0+DOC+XML+V0//EN). The Commission issued its opinion on the Parliament’s report on 14 March 2007, and will not accept the majority of the Parliament’s amendments. At its meeting on 12 February 2007, the Council of Cristian Dumitrescu, Ministers examined the European Parliament’s amendments and found that Member vice president of States would be unable to approve all of them. One of the crucial issues concerns JURI/ PSE/ RO rules on defamation and road traffic accidents. Consequently, a conciliation committee will be convened. The ‘conciliation procedure’ will involve a trialogue with all three main EU Institutions: the Commission, the Council and the Parliament. The conciliation discussions last maximum six months, after which if there is no agreement, the draft regulation is rejected entirely. However, it is likely that a compromise will be resolved during negotiations between the institutions, which take place every two weeks.

For further information, please contact Birgit Beger ([email protected]).

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IT-Law

The CCBE at its Standing Committee in Vienna on 15 February 2007 adopted Guidelines for e-signature proj- ects and for using electronic signatures by legal professionals (please see http://www.ccbe.org/doc/En/ en_it_law_guidelines_e_signature_150207.pdf ). Additionally, up-dated CCBE Recommendations on Electronic ID cards for the legal profession (http://www.ccbe.org/doc/En/en_it_law_ccbe_recommendations_electronic _id_ccards_150207.pdf ) were also adopted by the membership.

Both documents are part of a greater scheme by which the CCBE seeks to assist the development of a safe and practical electronic environment for legal professionals throughout Europe. The electronic signature, which is the subject of the new guidelines, is not to be considered as an isolated matter that stops at the borders of national jurisdictions. The establishment of a greater scheme for European lawyers which makes e-communication interoperable is inevitable to help facilitate freedom of services and freedom of establishment for lawyers. The sec- ond document, the updated recommendations on electronic ID cards, will help at a later stage this year in the drafting of a European Framework System for electronic ID cards for lawyers. This framework system will be based on a technical standard, namely on a common Certification Policy for national certification authorities to interoperate digital certificates. With this European Framework System, the CCBE aims at supporting its member bars in the implementation of electronic ID card schemes, while at the same time making these schemes interoperable for lawyers throughout Europe. It will also help lawyers to interact safely and maintain their role as an independent part of the judicial system and within national e-government structures.

For further information, please contact Birgit Beger ([email protected])

Establishment of EU lawyers in Luxembourg - Update

The European Commission sent a letter of formal notice to Luxembourg in March, requesting full information on its implementation of the European Court of Justice judgement delivered on 19 September 2006 (Case C- 193/05).

In its judgment, the Court stated that Luxembourg did not comply with the Establishment Directive 98/5/EC due to the prior examination of language knowledge for lawyers wishing to carry on their profession under their orig- inal professional title, the ban on providing company domicile and the obligation to produce each year a certificate of registration in the Member State of origin. Unless it takes such steps, the Court may penalise Luxembourg (for further information on the case, see CCBE info N°17 – January 2007).

It should, however, be noted that the Bar of Luxembourg did register the English lawyers concerned by the case.

For further information, please contact Karine Métayer ([email protected]).

Multi-jurisdictional Law Firms Committee

The CCBE has created a new committee on Multi-jurisdictional Law Firms under the chairmanship of Michael Irvine (IE). The delegations nominated members for this new committee and a first meeting took place in Brussels on 23 April.

The purpose of establishing the Multi-jurisdictional Law Firms Committee is to enable a platform for discussion and policy proposals at a European level regarding issues rele- vant to law firms which have an office in more than one jurisdiction of the EU on a permanent basis.

For further information, please contact Birgit Beger ([email protected])

Michael Irvine, Chairman of the new committee on Multi-jurisdictional Law Firms

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Professional Indemnity (PI) Insurance

Dr. José de Freitas (PT) has been appointed as the chair of this working group. A report on the advantages and disadvantages of existing PI insurance schemes for lawyers has recent- ly been prepared by Rembert Brieske (DE), Bruno Richard (FR) and Andrew Darby (UK). The report will be available on the CCBE website later this year.

Further work in hand includes the evaluation of answers to a CCBE questionnaire on liability law, PI insurance schemes and, insofar as they exist, client compensation funds throughout Europe.

For further information, please contact Birgit Beger ([email protected]) Dr. José de Freitas, chair of the PI Insurance working group Social Security

The CCBE working group on social security for European lawyers in the context of the free movement of lawyers (under the chairwomanship of Mary-Daphné Fishelson (FR)) has been relaunched and had a meeting on 18 April 2007.

Current items of work are the results of the case before the European Court of Justice (C-103/06), which concerns social security payments by lawyers who work in multi-national law firms. URSSAF (Union de recouvrement des cotisations de Mary-Daphné Fishelson, chair- sécurité sociale et d’allocations familiales) claims that certain French lawyers asso- woman of the CCBE working ciated with English law firms unlawfully avoid social security payments in France. group on social security The hearing took place in Luxembourg on 7 March 2007.

Furthermore, the working group is considering whether the legislative proposal presented by the European Commission on 30 March, which aims at updating Community regulation relating to the application of social security schemes to employed persons, self-employed persons and their families moving within the Community (EEC 1408/71), merits further work of the CCBE with regard to social security aspects for lawyers.

For further information, please contact Birgit Beger ([email protected]).