Highlights from the most recent Brussels Agenda briefing issued by the UK Law Societies' joint Brussels office, including public documents; impact assessments; presumption of innocence

Acceptance of public documents in the European Union

The final text of a regulation on requirements for simplifying the acceptance of certain public documents in the EU has been approved.

An issue between the Parliament and Council of Ministers was the number and types of documents to be covered, with the Parliament wanting education certificates and documents certifying health and disability included in the list, and the Council inclined towards recognising only documents relating to birth, death and marriage. A compromise has been reached under which the Commission will provide an assessment report after two years, on the appropriateness of extending the regulation to other documents.

The regulation is seen as a way of further improving the application of the right of free movement of citizens, and does not impinge on the nature of the documents, which are issued by the authorities of the member states in accordance with their national laws. The proposed system relies heavily on collaboration between member states, in setting up the necessary system and ensuring its functionality.

The regulation introduces further simplification of administrative formalities for the circulation in the member states of public documents regarding civil status (i.e. birth, death, marriage, civil partnership, parenthood), residence, domicile, nationality, criminal record and documents required for standing in elections. It applies also to certified copies of the documents, and to electronic versions of public documents and multilingual standard forms suitable for electronic exchange, if they can be presented in accordance with national law.

One important requirement of the regulation is the establishment of standard multilingual forms for the purpose of facilitating the translation of the public documents to which they have to be attached.

Requests for information and administrative cooperation between member states will be dealt with through the Internal Market Information System (Regulation 1024/2012).

Impact assessments may not have to be disclosed

On 13 November 2015, the Court of Justice of the European Union ruled in ClientEarth v Commission (Joined Cases T-424/14 and T-425/14) that impact assessments intended to guide the Commission in drawing up its proposals for legislative acts are not, in principle, to be accessible to the public before those proposals have been disclosed.

ClientEarth, a London based environmental protection NGO, brought the claim after having been denied access to two of the Commission's impact assessments on its decision not to adopt a directive underpinning the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. The Commission said that such access would negatively impact the policymaking process.

ClientEarth attempted to appeal under Regulation 1049/2001 on access to documents, which provides that decisions by EU institutions such as the Commission should be taken as openly as possible, meaning the fullest possible effect should be given to the right of public access to documents of the institutions.

Here the court held that an exemption applies where disclosure of the document would seriously undermine an EU institution's decision-making process for developing a policy proposal, unless there is an overriding public interest in disclosure.

The CJEU found that in the context of the preparation and development of policy proposals and legislative acts, the Commission does not need to carry out a specific and individual examination of documents when drafting impact assessments. The Commission may also rely on grounds of a general nature relating to: the need to preserve its “thinking space”, room for manoeuvre, and independence; the need to preserve the atmosphere of trust during discussions; and the risk of external pressures liable to affect the conduct of the ongoing discussions and negotiations.

The CJEU's reasoning applies for so long as the Commission has not made a decision to adopt or abandon the proposal.

Critics of the decision say access to impact assessments would let citizens participate in the lawmaking process, and that increased transparency would make it more difficult for the Commission to block the adoption of directives.

Presmption of innocence to be strengthened; UK has opted out

On 4 November 2015, the Permanent Representatives Committee (Coreper) approved a compromise agreement with the European Parliament, taking legislators one step closer to a proposed directive strengthening the presumption of innocence, as well as enshrining the right for a defendant to be present at trial in criminal proceedings.

The proposed measures would also require member states to ensure that suspects and accused persons are not presented as being guilty before a final judgment (for example through the use of measures of physical restraint, or being forced to wear prison clothing), and to provide effective remedies for those whose rights under the proposed directive are breached.

Félix Braz, Luxembourg Minister for Justice and President of the Council on Justice and Home Affairs, said that this was “an important step in the creation of a European judicial area”, serving to protect one of the fundamental rights of criminal defendants. It should be noted that the UK, having exercised its right to opt out of certain measures in the field of justice and home affairs, will not be subject to the directive.

Elsewhere, the directive would impose minimum standards for defendants in criminal trials across the EU, complementing and building on those rights guaranteed by the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights (under article 6(2) and article 48 respectively). According to the Council's press release, the directive would “strengthen mutual trust and confidence between the different judicial systems of the member states and will facilitate the mutual recognition of decisions in criminal matters”.

This proposal follows those already introduced in the field, for example the right to information in criminal proceedings and to translation/interpretation, already established under the Commission's 2009 roadmap which seeks to introduce a catalogue of rights for suspects in criminal proceedings.

The Commission published a green paper on the presumption of innocence in April 2006, owing to concerns over divergence in criminal law procedures and the erosion of the presumption in certain Member States.

The compromise agreement will now be subject to “legal scrubbing” before being submitted to the European Parliament for a vote at first reading. Following adoption, member states (other than the UK, Ireland and Denmark) will have two years to bring into force the necessary laws, regulations and administrative provisions to comply with the directive.

The material in this article is derived from the Brussels Agenda, published by the UK Law Societies' joint Brussels office. To subscribe, contact: Antonella.Verde@LawSociety.org.uk


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