More than Grexit

It is not often that I have more stories than I can cope with.

While everyone has been transfixed by the Greek euro drama, there have been interesting developments in other items that I have written about recently, coming thick and fast. They have mostly stayed below the radar, because of possible Greek default. The biggest news is on mass surveillance, but I will quickly deal with a few others.

Let me start with Grexit. The news here is that the Athens Bar Association passed a resolution, indicating that the bail-out referendum includes unconstitutional elements and has no clear content, after an open meeting of its governing council attended by about 70 lawyers.

They are not the only ones to question the lawfulness of the referendum – the Council of Europe is among other critics (and at the time of writing the Greek Council of State is about to give its opinion). Meanwhile, the Greek justice minister shut down the country’s court system for the whole week running up to the vote, apparently so that its staff could focus on running the referendum.

I wrote a few weeks back about a dispute between the president of the Court of Justice of the European Union and an MEP, about the number of judges in the General Court. The president thinks that the number should be doubled from 28 to 56.

The MEP, who is the official reporter on the issue in the parliament, thinks that would be wasteful, and other solutions should be found (he sided with the General Court’s own solution of increasing support staff). Well, the Council of the EU, which brings together national government representatives, has now sided with the president of the court, who has made an official complaint to the president of the parliament about the behaviour of the MEP.

The president of the court has also apparently written to a judge in the court about sharing a document with the MEP. The MEP meanwhile has made a complaint about the Council. The Financial Times in its coverage calls it an ECJ Fight Club.

Then, last week, I wrote about the ramifications of a forthcoming decision about Uber, as to whether it is a digital provider (and so not subject to the rules relating to taxi drivers) or a taxi service (and so subject to them). I feared that their being defined as a digital provider would open the door to legal services platforms being able to escape regulation in the future.

I read this week of a new study saying that the circular economy is Europe’s next big thing, and EU policymakers are keen to get in on the act. A linear economy is the one we are living in now: resources are used, goods are produced at the lowest cost, and waste is thrown away. In a circular economy, private ownership gives way to leasing and sharing products – in just the way Uber and Airbnb operate.

At a conference attended by three EU commissioners to publicise the study, it was reported that there would be annual benefits from the circular economy of up to €1.8tn by 2030. So, in my view, the Commission is very unlikely to take hostile action against Uber, and lawyers should watch out.

The main news, though, is about a court judgement on mass surveillance. I wrote recently about a case being brought against the Dutch government by a Dutch law firm, Prakken d’Oliveira. My organisation, the Council of Bars and Law Societies of Europe (CCBE) intervened. Well, Prakken d’Oliveira and the CCBE have now won their case, and it is a significant victory. 

According to the court, the Dutch state has six months to provide adequate and stringent safeguards as regards the surveillance of lawyers by security agencies. If it does not, then the Dutch state must stop all interception of lawyer-client communication. The court required - and this is significant for the UK debate - that an independent body is given powers to countermand or stop such surveillance.

Security services may only release information obtained from surveillance of lawyers to the public prosecutor if an independent body has examined under what conditions it was obtained. At present, a minister gives authorisation prior to surveillance, and supervision takes place only afterwards, which the court deemed insufficient protection.

For those who speak Dutch, the case can be read here. It should be noted additionally that the court did not find that there had been widespread tapping of lawyers’ conversations. The state has not yet reacted, saying only that the judgment is under review. An appeal can be filed within four weeks.

So not everything has stopped for Grexit – but it may be a very different story in the coming week of course.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs