EU: end-of-term fever

There is an end-of-term feel to Brussels at the moment: a whirl of activities to sit exams, publish results, hold the school dance and prepare for the graduation ceremony. The European elections are coming soon, sweeping out the old and introducing the new.

The new looks as if it will be very new. If the polls are anything to go by, the far left and far right will both see a significant surge in membership in the new European parliament, and it is a commonplace to add that there will be a stronger Eurosceptic element on all sides, making future legislation much more unpredictable.

Before its rapidly approaching expiry date, the parliament has just held a marathon voting session, including on a number of items of great interest to lawyers. Indeed, there have been so many recent developments in all the institutions that I will just touch briefly on them, to give you a flavour. Each deserves a blog to itself, but I have covered many of the topics previously in more depth.

The biggest triumph for lawyers is also the one which will have least impact, because the relevant clauses are contained in a resolution rather than in legislation. The parliament passed by a huge majority its resolution on mass government surveillance. According to its prime mover, the UK MEP Claude Moraes, it is ‘the only international inquiry into mass surveillance. […] Even the US Congress has not had an inquiry’.

The final report has embedded our concerns about lawyer-client confidentiality, for instance in the following clause: ‘Considers it crucial that the professional confidentiality privilege of lawyers … is safeguarded against mass surveillance activities; stresses, in particular, 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’.

It also proposes ‘A European Digital Habeas Corpus - protecting fundamental rights in a digital age’ with eight action points of which one says: ‘Action 6: Protect … the right of the public to receive impartial information and professional confidentiality (including lawyer-client relations) … .’ As an aside, for those following this issue, it is interesting to see that, following the American Bar Association’s recent letter to the National Security Agency (NSA) about alleged spying on a law firm, the NSA has replied with a strong endorsement of the importance of lawyer-client confidentiality.

The parliament also passed various pieces of legislation which will have a much more direct impact on the profession and its practices. It passed the fourth anti-money laundering directive and the data protection package with various amendments, and gave approval to the European Public Prosecutor’s Office (EPPO). These have variable futures.

The anti-money laundering directive will now go to the Council. The data protection package (with its provisions on the right to delete data, new limits on profiling, and rules on explicit consent to commercial use of data) will also go to the Council, but is likely to be stalled there for a long time since the member states cannot agree on it. The EPPO will proceed even though not all member states agree with it, since the Commission has decided to use the enhanced co-operation procedure (which requires a minimum of nine member states, something the Commission has already achieved).

Meanwhile, the European Commission and the Council have not been idle. They need to produce priorities in the field of justice for the next few years, with the aim of the final version being agreed at the European Council meeting on 26-27 June. The Commission has published its thoughts, which are centred around three words: consolidate, codify and complement.

Consolidation turns out to be the most important area for us, listing the following future activities on which it intends to concentrate in the coming period: ‘training of judges and legal practitioners; the better use of information technology in courts, judicial and extra-judicial proceedings; the use of other types of swift and less-costly redress and remedies mechanisms (for example through the use of alternative dispute resolution or administrative review)’. It seems that, after a period of hyperactivity under commissioner Reding, there will be less legislation in the next Commission.

Commissioner Reding has also managed to make progress in these dog-days of her term with the idea of the European Commission monitoring breaches of rule of law in the member states – the framework of a three-step procedure in this area was passed by the Commission just a few days ago.

Phew! That is a lot of material to get through in one blog post. I get the feeling that, since all kinds of (how should I put this?) interesting MEPs might be elected by you, the people, in the coming elections, the institutions believe that as much as possible should be put to bed now, and not much legislation should be promised for the coming term.

Jonathan Goldsmith is secretary general of 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