Our little local difficulties in Europe do not mean that work is not continuing on the many substantive changes that are taking place at European level in the justice area. How to keep up with them all? (Read this, that’s how …)

I have written before about the enhanced procedure which is permissible under the Amsterdam Treaty of 1997. This allows a number of member states – a minimum of 9, see article 20 of the treaty – to introduce legislation among themselves only, without involving all 27 member states. It is being used for the first time in the area of divorce. Fourteen member states are now ready to make divorce proceedings easier for mixed-nationality couples by giving them the choice of which national law will apply. There are big countries in the group like France, Germany and Spain, but not the UK. There are exceptions for Malta, where divorce is not part of the legal system, and also for the large number of member states that do not recognise same-sex marriage, which accordingly will not be obliged to issue divorce judgments between persons of the same sex.

But, rather like a lion which, once it has eaten human flesh cannot stop itself from continuing, so it goes with the enhanced procedure. Following in the footsteps of divorce, the area of patents is likely to be the next lion’s victim. I have written before about the tortured debates behind the effort to try to modernise the patents procedure. The use of different EU languages is largely responsible for the fact that an EU patent is 10 times more expensive than its equivalent in the US. Attempts to find agreement on a new system have failed, and so 5 member states – this time including the UK – have argued that it is ‘imperative not to delay progress towards a more innovative Europe’. Two further states have since then signalled their support and a further two are considering it. So, it looks as if it might get off the ground. The final initiative is likely to be one where only three languages (English, French and German) are used.

In the area of crime, the minimum procedural safeguards – see here – are making progress. Measure A (the right to translation and interpretation in criminal proceedings) is now a directive which needs to be implemented within 36 months. Measure B (the right to information) is currently being discussed in the council, and the focus will move next to the parliament. An important right, the right to silence, which had not been included in the original text in order to keep the UK and Ireland on board – it is not an absolute right in the UK and Ireland, as inferences can be made when the right is invoked – has now been included. The next measure, Measure C (the right to legal advice and legal aid), is being split in two, so that the less controversial can proceed on its own: the right to legal advice, which is the less controversial, is planned for next year – the drafting is currently taking place; the right to legal aid, on the other hand, is being delayed until 2013, while further research is carried out into the divergences between the member states and the potential cost of any future measure.

At the same time, and at the other end of the criminal law spectrum, there is a proposal from seven member states – the UK not among them – about a European Investigation Order (EIO). The UK could opt out, but it is understood that it will not. This measure will replace with a single instrument various existing laws relating to criminal investigations, such as that for the European Evidence Warrant and freezing orders. There have been loud protests, from the CCBE, Justice and Statewatch, among others, that the proposal goes back to the old days, when prosecution rights were all, and defence rights were overlooked. And the CCBE says this: ‘The proposal does not contain the possibility for the defence to make use of an EIO. It goes without saying that proper defence sometimes require for witnesses to be examined abroad, documents to be obtained abroad and added to the case file at home, etc. It follows from the Dayanan case (ECHR 13 October 2009, Dayanan v Turkey, 7377/03, paragraph 32) that "the accused must be afforded the possibility of investigating facts and, in particular, potentially favourable evidence". The proposal must contain an article that explicitly deals with providing the possibility for the defence to make use of an EIO.’

So, Christmas may be coming and the euro under mortal threat, but we keep busy here.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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