FREE Newsletter (EAFSJ Texts published on the Official Journal – December 2012

L 361 31 December 2012

Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection

Council Regulation (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements

FROM THE EP PRESS SERVICE : EU inventors will soon be able to get a unitary patent at last. After over 30 years of talks, a new regime will cut the cost of an EU patent by up to 80%, making it more competitive vis-à-vis the US and Japan. MEPs cut costs for small firms and tailored the regime to their needs, in a compromise deal with the Council endorsed by Parliament on Tuesday, In three separate voting sessions, MEPs approved the so-called “EU patent package” (unitary patent, language regime and unified patent court). “Intellectual property must not stop at borders. The path towards the introduction of the EU patent was long and troubled, but ultimately it has been worth the effort”, said Bernhard Rapkay (S&D, DE), the lead MEP on the regulation setting up a unitary patent protection system, “Today’s vote is good news for EU economy and especially for European small and medium enterprises (SMEs)”, he added. The current European patent regime “is effectively a tax on innovation” said Raffaele Baldassarre (EPP, IT), who led talks on the regime for translating EU patents. READ MORE The Lehne report was approved by 483 votes to 161, with 38 abstentions.

L 361  31 December 2012

Council Regulation (EU) No 1272/2012 of 20 December 2012 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (recast)

Council Regulation (EU) No 1273/2012 of 20 December 2012 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (recast)

FROM THE EP REPORT : General background The SIS (Schengen Information System) is by far the most important instrument for the security of the Schengen Area, which is rightly considered the backbone of a Europe without borders and the area of freedom, security and justice. The SIS II (the second generation SIS) makes it possible to add new data (biometric data, in particular), new types of indication and new functions which can increase security and lead to a more intelligent use of information through interconnected alerts. Provisions on the establishment, operation and use of the SIS II were agreed in 2006 between the Council and the European Parliament in first reading under co-decision in order to avoid any further delays (Regulation 1987/2006). In parallel, an act under the former third pillar was agreed (Decision 2007/533/JHA). These instruments foresee that they will start applying to the Member States participating in the SIS 1+ only as of the date to be fixed by the Council, acting by the unanimity of its Members representing the governments of the Member States participating in SIS 1+ (according to Article 55(2) of Regulation 1987/2006). The new system needs to be fully tested before it can come into force, to verify whether SIS II fulfils the necessary technical and functional requirements (as defined by the respective legal instruments) and to confirm its solidity, availability and performance. The migration from SIS 1+ to SIS II should start once the tests have all been successfully concluded, probably in January 2013. 

C 402  29 December 2012

EU Drugs Strategy (2013-20) 

FROM THE COUNCIL PRESS SERVICE The Council adopted the EU drugs strategy for the years 2013-2020 (16693/12), as the current EU Drugs Strategy (2005-2012) will expire at the end of this year (15074/04). The EU Drugs Strategy provides the overarching political framework and priorities for EU drugs policy as identified by member states and EU institutions. The new Strategy is structured around two policy areas: drug demand reduction and drug supply reduction, and three cross-cutting themes: (a) coordination, (b) international cooperation and (c) research, information, monitoring and evaluation. Its two consecutive Action Plans, drafted by corresponding Presidencies in 2013 and 2017, will provide a list of specific actions with a timetable, responsible parties, indicators and assessment tools.

L 356  22 December 2012

Commission Decision of 20 December 2012 authorising Spain to extend the temporary suspension of the application of Articles 1 to 6 of Regulation (EU) No 492/2011 of the European Parliament and of the Council on freedom of movement for workers within the Union with regard to Romanian workers

FROM THE COMMISSION PRESS SERVICE The European Commission has approved a request from the Spanish authorities made on 13 December 2012 to extend the temporary restriction on access for Romanian workers to the Spanish labour market until 31 December 2013 due to serious disturbances on its labour market. These restrictions cannot be continued after the end of 2013 as temporary restrictions on the free movement of Romanian and Bulgarian workers must be lifted in all Member States as from 1 January 2014. The Commission’s decision is based on a specific safeguard clause in the 2005 Treaty on the accession of Bulgaria and Romania. This clause allows Member States that have lifted restrictions on workers from Bulgaria and Romania to subsequently re-impose restrictions if there are serious disturbances on their labour market, subject to the Commission’s agreement. Spain opened its labour market to Romanian and Bulgarian workers in 2009, but in August 2011 the Commission authorised Spain to temporarily restrict the free movement of Romanian workers until 31 December 2012 (see IP/11/960 and MEMO/11/554).

L 351  20 December 2012

Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

FROM THE EP REPORT : Regulation No 44/2001, with its predecessor the Brussels Convention, is one of the most successful pieces of EU legislation; it laid the foundations for a European judicial area, has served citizens and businesses well by promoting legal certainty and predictability of decisions and is used as a reference and a tool by other instruments. The recast of this Regulation is therefore of considerable importance. The rapporteur is content that agreement has been reached with the co-legislator along the following lines. 1. Abolition of exequatur In place of exequatur, the Commission proposes that a judgment enforceable in the Member State of origin is to be enforceable and enforced elsewhere in the EU upon production of an authentic copy and a certificate in the prescribed form issued by the court of origin, without any intermediate procedure. Thereafter, enforcement is to proceed as if the judgment were given by the courts of the Member State of enforcement. If the party against whom enforcement is sought did not enter an appearance in the proceedings leading to judgment, it may apply to the courts of the Member State of origin to review the judgment on the ground that either (a) it was not served with the document instituting the proceedings in sufficient time and in such a way as to enable it to arrange for its defence, or (b) it was prevented from contesting the claim owing to “force majeure or extraordinary circumstances without any fault on his part”, unless it failed to challenge the judgment when it was possible for it to do so. In addition, the party against whom enforcement is sought may apply to the courts of the Member State of enforcement for a refusal of enforcement if enforcement would not be permitted by the fundamental principles underlying the right to a fair trial. The Commission is proposing to abolish the present right to challenge recognition or enforcement of a Member State judgment on the ground of manifest incompatibility with the enforcing/recognising Member State’s public policy and replace it by the limited “fair trial” ground. Furthermore, with one very narrow exception, no review of the jurisdiction of the court of origin would be permitted, even in the limited circumstances currently envisioned by the Brussels I Regulation (non-compliance with consumer, insurance or exclusive jurisdiction requirements). The Committee is of the view that a substantive or procedural public policy exception seems to be still necessary. Such an exception might be required by Member States’ international obligations, and both the Rome I and Rome II Regulations contain exceptions for public policy and overriding mandatory provisions. A Member State before which proceedings are brought is entitled to preserve its fundamental values; therefore, equally, it must be the case for a Member State in which the enforcement of a judgment is sought. However, the Commission proposes that there should be two categories of judgment in which a declaration of enforceability must still be obtained by the enforcing party and served on the opposing party, subject to the latter’s right of appeal on limited grounds identical to those to currently be found in Article 34 of the current Brussels I Regulation, namely judgments concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation, and judgments in collective redress proceedings concerning compensation for harm caused by unlawful business practices which meet certain conditions. The Committee on Legal Affairs considers that for reasons of legal certainty it would be better to have no exemptions. This position has also found support in the Council. 2. Extension of the jurisdiction rules to disputes involving defendants domiciled outside the EU The Commission is proposing that the Regulation’s jurisdictional rules be applied with mandatory effect to third-country defendants, thereby displacing the Member States’ existing grounds of jurisdiction in such cases. In order to compensate for the resulting reduced access to the courts in many Member States and for the non-availability of the general domicile-based ground of jurisdiction, the Commission is also proposing that the courts of a Member State where moveable assets belonging to the defendant are located are to have jurisdiction, provided that (1) no other Member State court has jurisdiction under the preceding rules of the Regulation, (2) “the value of the property is not disproportionate to the value of the claim”, and (3) the dispute has a “sufficient connection” with the Member Stare of the court seised. On an exceptional basis, it is proposed that there should be a forum necessitatis, i.e. the right to bring proceedings before a Member State court with which the dispute has a “substantial connection”, if “the right to a fair trial or the right of access to justice so requires” and if no other Member State court has jurisdiction under the preceding rules in the Regulation. In particular, proceedings may be brought under these circumstances (a) if proceedings would be impossible or cannot reasonably be brought or conducted in a third State with which the dispute is closely connected, or (b) if a judgment given in a third State would not be entitled to recognition and enforcement in the Member State of the court seised and such recognition and enforcement is necessary for the claimant’s rights to be satisfied. The Committee adheres to the position expressed in Parliament’s resolution on the Green Paper that the question whether the rules of the Regulation should be extended in this way requires wide-ranging consultation and political debate. At this juncture, it is therefore proposed that rules be included in the Regulation to introduce only a partial reflexive effect for disputes in the field of employment, consumer and insurance contracts, in order to protect the weaker party in those situations. 3. Choice-of-court agreements The enhancement of the effectiveness of choice-of-court agreements by stipulating that the court chosen by the parties to resolve their dispute should always have priority, regardless of whether it was first or second seised seems to be a viable solution. Article 32(2) provides that where an agreement referred to in Article 23 confers exclusive jurisdiction on a court or the courts of a Member State, the courts of other Member States shall have no jurisdiction over the dispute until such time as the court or courts designated in the agreement decline jurisdiction. Moreover, the lis pendens provision set out in Article 29 of the proposed Regulation is expressed to be without prejudice to Article 32(2). Recital 19 refers to the need to improve the effectiveness of choice-of-court agreements in order to “avoid abusive litigation tactics”, before going on to say that the Regulation should grant priority to the court designated in the agreement to decide on its jurisdiction, regardless of whether it is first or second seised. In addition, Article 23(1) now qualifies the conferral of jurisdiction upon the chosen court by words “unless the agreement is null and void as to its substantive validity under the law of that Member State”. 4. Arbitration agreements  The Commission is of the view that the effectiveness of arbitration agreements should be improved in order to give full effect to the will of the parties. In particular, it should be the case where the agreed or designated seat of arbitration is in a Member State. It recommends special rules aimed at avoiding parallel proceedings and abusive litigation tactics in those circumstances. Regarding this point, the Committee adheres to the position taken by Parliament in its resolution on the Green Paper: arbitration is satisfactorily dealt with by the 1958 New York Convention and the 1961 Geneva Convention on International Commercial Arbitration. All Member States are parties to the above mentioned conventions; therefore the exclusion of arbitration from the scope of the Regulation should be preserved. Recital 11 and following above clarify this. 5. Other questions The Committee acknowledges that improvements seem to have been made with regard to preliminary measures. The Committee can support the proposal to enable Member State courts to stay proceedings in a lis pendens situation in which the court of a non-Member State is first seised of an action involving the same parties and the same cause of action. 6. Conclusion In conclusion, the Committee on Legal Affairs is satisfied with the compromise reached with Council, as it corresponds to Parliament’s position in all major points. The recast Regulation irons out some of the difficulties encountered over the last decade in this field, and the abolition of exequatur for all civil and commercial judgments is a significant step forward in access to justice for citizens and businesses.

C 393 19 December 2012

Council conclusions of 26 November 2012 on the European strategy for a Better Internet for Children

Council, of 27 November 2012 on the participation and social inclusion of young people with emphasis on those with a migrant background

C 388 15 December 2012

Report on the annual accounts of the European Police College for the financial year 2011, together with the College’s replies

Report on the annual accounts of the European Institute for Gender Equality for the financial year 2011, together with the Institute’s replies

Report on the annual accounts of the European Monitoring Centre for Drugs and Drug Addiction for the financial year 2011, together with the Centre’s replies

Report on the annual accounts of the European Network and Information Security Agency for the financial year 2011, together with the Agency’s replies

Report on the annual accounts of Eurojust for the financial year 2011, together with Eurojust’s replies

Report on the annual accounts of the European Police Office for the financial year 2011, together with the Office’s replies

Report on the annual accounts of the European Union Fundamental Rights Agency for the financial year 2011, together with the Agency’s replies

Report on the annual accounts of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States for the financial year 2011, together with the Agency’s replies

C 383  12 December 2012

Opinion No 8/2012 on the proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law (pursuant to Article 325 of the Treaty on the Functioning of the European Union)

L 337 11 December 2012

Council Decision of 6 December 2012 concerning the request of Ireland to take part in some of the provisions of the Schengen acquis relating to the establishment of a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice

C 380  11 December 2012

Resolution of the Council and of the representatives of the Governments of the Member States, meeting within the Council, on the overview of the structured dialogue with young people on youth participation in democratic life in Europe

C 377  7 December 2012

Call for proposals 2012 — Europe for Citizens Programme (2007-2013) — Implementation of the programme actions: Active Citizens for Europe, Active civil society in Europe and Active European Remembrance

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