Oh, and the Lisbon Treaty…

I want to write about the European Courts, but I can’t let a week like the past one go by without comment. We rarely have so much excitement in Brussels. Tony Blair apparently out of the running for the role of new EU President! The Lisbon Treaty up and running! Despite the sore temptation to give you my real views on these things (Tony Blair as president – what were they thinking? A cast-iron guarantee for a referendum on the Lisbon Treaty – what was David Cameron thinking?), I shall restrict myself to the consequences for lawyers.

The Law Society has itself produced an excellent guide to the Lisbon Treaty, which I recommend to you. You may be disappointed to find that you are not going to be frog-marched into slavery within a European super-state. In fact, hardly anything noticeable will change. I will not send you to sleep by summarising the main provisions of the treaty, but will rather concentrate on one of the European institutions affected by the treaty, and on which public light hardly ever falls: the European courts. There are changes afoot for them, both as a result of the treaty and outside it.

The European courts themselves want to be better known, particularly to lawyers. At a recent meeting we had with the European Court of First Instance, the judges remarked that lawyers are sometimes not sufficiently familiar with their practice directions, especially in intellectual property cases. The courts have recently updated their website. You will find information in all EU languages concerning the procedures before the Court of Justice, Court of First Instance and Civil Service Tribunal at: http://curia.europa.eu/jcms/jcms/Jo1_6308/.

Did you know that there are plans to establish a new court at European level, the European and Community Patents Court? The proposal raises many controversial issues, such as in which language the litigation should proceed. But of course lawyers are interested in representation of clients. The latest draft (article 28) makes clear that parties shall be represented by lawyers, but leaves open the possibility that they may also be represented by ‘European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to article 134 of the European Patent Convention and who have appropriate qualifications such as a European Union Patent Litigation Certificate’. We are concerned about this because it says nothing about the qualification criteria for such attorneys, regulatory and disciplinary consequences for misconduct, or the position relating to privilege. We were pleased to note that the Court of First Instance recently turned down an appeal against refusal to allow a ‘Trade Mark and Design Litigator’ from appearing before it, on the grounds that the person was not a lawyer.

The Lisbon Treaty improves access to justice before the European courts – you see, it improves something! – for an important category of cases. Currently, a person or business can challenge the legality of certain EU acts directly before the Court of First Instance, if it can be shown that the act is of ‘direct and individual concern’ to that person or business. This has been strictly interpreted by the courts, so that few could bring a challenge. The new treaty removes the requirement of ‘individual concern’ when a person or business challenges ‘…a regulatory act which does not entail implementing measures’ if they can show ‘direct concern’.

The European Convention of Human Rights (ECHR) will now also apply to the European Union itself as a result of the Lisbon Treaty, and the Charter of Fundamental Rights will have the status of a treaty. The EU and its institutions will become accountable to the European Court of Human Rights in much the same way as the UK government is accountable on domestic matters where ECHR issues arise. The European Courts will therefore also directly apply the ECHR as part of EU law.

So, cheer up, there are some serious and interesting developments beyond last week’s hysterical headlines.

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