Rights cross borders

 

EU LAW UPDATE:A NUMBER of interesting initiatives were taken in areas where EU law has traditionally had a very limited role, by the Council of EU home affairs ministers on June 7th and 8th in Brussels.

The council reached a general approach on a proposal for a directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest.

This is an area of some sensitivity for member states, not only because of the differences between their respective criminal procedures but also due to disagreements about the correct interpretation of the case-law of the European Court of Human Rights.

The proposed directive (which will now proceed by way of negotiation between the council and the European Parliament) forms part of a “road map” on criminal procedural rights agreed by the council in November 2009. This identifies a series of proposals aimed at establishing common minimum standards on the rights of suspects and accused persons in criminal proceedings.

The council also adopted a regulation in respect of succession. Its purpose is to speed up procedures in cross-border succession situations and to make it easier and less costly for heirs and legatees to take possession of their respective parts of the estate.

The regulation will operate on the basic premise that the law applicable to the succession will be the law of the state of the deceased’s habitual residence at the time of death and that decisions taken by the appropriate court will be applicable throughout the EU.

The regulation will be directly applicable in all member states except Denmark, Ireland and the UK, each of which has negotiated the ability to maintain national positions in respect of matters concerning justice and home affairs.

Finally, the council held an orientation debate as to its position regarding the commission’s proposal for a common European sales law. If adopted the commission proposal would provide for a single set of rules for cross-border contracts applicable in all EU member states. It is proposed that these rules would be applicable on an optional basis (ie, with the express consent of both the supplier and the purchaser) and would apply in the context of both business-to-consumer and business-to-business contracts.

In making its proposal the commission has identified the lack of such a common sales law as a significant impediment to trade between member states as it results in even small suppliers having to adapt to up to 26 different national contract laws.

The council’s orientation debate concluded that, while fundamental legal issues remain to be resolved before any such proposal could be adopted (in particular in respect of the precise legal basis for such a law within the EU legal framework), substantive work on the proposal should proceed including the drafting of model contracts for inclusion in the common sales law.

Donogh Hardiman is a member of the Irish Society for European Law

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