The CCBE on the ‚Stockholm Programme‘

2009 is a year of important institutional
changes at European level, not least because the European Parliament
was reconstituted after the European elections on 4-7 June. Later in
the year, it will be the Commission’s turn to be renewed, and it can be
expected that it will also reorganise its departments, with the new
Parliament exercising an increasing degree of influence. July 2009 also
marks the start of the Swedish Presidency of the Council, which has
high on its agenda the objective of defining the action programme –
already called the ‘Stockholm Programme’ – for the next five years in
the area of freedom, security and justice. 

The Council of Bars and Law Societies of
Europe (CCBE) which, through its members, represents over 700,000
lawyers from the European Union and European Economic Area and beyond,
is of course trying to influence the direction of the EU’s principal
policies in the field of justice. It is in this context that the CCBE
published a manifesto calling for ‘the right kind of justice for

The general aim of the manifesto is to ask
EU decision-makers to ensure that there is always proper co-ordination
and coherence of policy in the justice sector, with particular
attention to striking the right balance between fundamental rights and
other political priorities, such as security. All the CCBE’s proposals
have as their aim to defend the fundamental legal principles upon which
democracy and the rule of law are based. We believe that these
principles are all at the heart of the European Union. 

In its four-point manifesto, the CCBE calls
on the EU to establish a separate directorate general for justice (‘DG
Justice’) at the European Commission. At present, justice is dealt with
by DG Justice, Freedom and Security (JLS). It has the word ‘justice’ in
its name, indeed as the first word, but JLS does not deal with justice
alone. There are also other DGs which often have responsibility for
justice issues. The CCBE believes that the current arrangements in the
European Commission may lead to a justice deficit, and to a failure
properly to serve the needs of European citizens. A DG Justice is a
better vehicle to address these concerns. A single DG should have
responsibility only for justice, without any conflicting
responsibilities such as security, and should deal with all matters of
justice, and not just some of them, even if other DGs have subsidiary
responsibilities on aspects of legislation. In addition, it should have
an overall role for ensuring consistency and coherence in European

The setting up of a mechanism of collective
redress at EU level is not being considered within the future Stockholm
Programme, and this only because it is not dealt with by DG Justice,
Freedom and Security, although it is clearly a justice issue. This, in
the view of the CCBE, is an example of the negative effect of the
absence of a stand-alone DG Justice. 

The idea of a DG Justice provoked a
dismissive reaction from the relevant contacts at the Commission a few
months ago. Today, as the CCBE’s demand is being discussed and promoted
by other influential players in Brussels, the same contacts admit that
it is a possible, maybe even a probable, development. It is certain
that it will be for the European Commission to decide, but there are
already encouraging signs of re-organisation within the structure of
the existing DG JLS. 

Another point raised in the CCBE manifesto
is guaranteeing the right of a client to consult a lawyer in full
confidence. The CCBE is concerned about recent developments in Europe
that seriously affect human rights and the rule of law, in particular
intrusions into privacy and the imposition upon members of the legal
and other confidentiality-bound professions to report to public
authorities confidences made to them by clients. The CCBE has
consistently pointed in the past to the dangers of such measures, for
instance, recently in its submissions to the European Commission on the
fight against money-laundering and in other regulatory moves for
financial regulation. 

Arguing for the protection of the
client-lawyer relationship is not about defending the interests of a
profession, but about guaranteeing the clients’ rights and the
administration of justice in general. That is why the CCBE considers it
of the highest importance that the political leadership in the European
Union understands the significance of unlimited protection of the
lawyers’ obligation of professional secrecy and confidentiality in the
public interest. 

The CCBE also makes the case for the
protection of the procedural rights of suspects and defendants in
criminal proceedings in all member states. The current Hague programme,
adopted on 5 November 2004, states:

‘The further realisation of mutual
recognition as the cornerstone of judicial cooperation implies the
development of equivalent standards for procedural rights in criminal
proceedings, based on the studies of the existing level of safeguards
in member states and with due respect for their legal traditions.’

The CCBE has been deeply disappointed by the
lack of progress on the definition of common minimum procedural
guarantees, an issue already identified as important by the European
Council of Tampere ten years ago. Furthermore, a proposal in this field
has been called for by the European Parliament ever since the adoption
of the proposal for a European Arrest Warrant in September 2001. The
CCBE believes that the imbalance which currently exists at the European
level between the rights of the prosecution and the rights of the
defence threatens to undermine confidence in the principle of mutual

Thanks to the impulse given by the Swedish
Presidency to revive this objective, the definition at EU level of
minimum procedural safeguards in criminal proceedings is gaining
momentum. As a start, the focus is put on linguistic assistance for
suspects and defendants in cross-border cases. The CCBE understands
that a pragmatic step-by-step approach may be adopted, rather than
going for an ensemble of non-separable rights (which the CCBS prefers),
provided that the intention is to work from a pre-defined package of
rights, which should help avoid some rights being left out. 

The basic minimum procedural safeguards
identified by the Commission are: access to legal advice, both before
the trial and at trial; access to free interpretation and translation;
ensuring that persons who are not capable of understanding or following
the proceedings receive appropriate attention; the right to
communicate, inter alia, with consular authorities in the case of
foreign suspects, and notifying suspected persons of their rights (by
giving them a written ‘Letter of Rights’). These are basic rights that
are immediately necessary in order to build the mutual trust without
which mutual recognition will not succeed. 

As a fourth point, the CCBE calls on the EU
to strike the right balance between liberty and security in legislation
against terrorism and organised crime. The CCBE condemns terrorism and
violence in any form. Terrorism must be prevented and fought at
national, European and international level with the firmest
determination and through the rule of law. The CCBE would like to
emphasise at the same time that it is the duty of all governments to
preserve and promote fundamental rights, freedoms and liberties as well
as the rule of law, which are the foundations of democratic societies.
Undermining these fundamental values would go in the direction wished
by those whose aim is to destroy democracy through the use of violence
in its most inhuman form. 

It can sometimes be difficult to find a
balance between ensuring public security on the one hand, and
preserving human rights and civil liberties on the other. However, both
security and human rights can fully coexist and are absolutely
necessary to prevent and fight terrorism. An example of the balance not
being struck appropriately can be found in the failure, so far, to
introduce minimum procedural safeguards, as mentioned above, despite
the prior introduction of the European Arrest Warrant to speed

The CCBE naturally builds in part on its
manifesto in making its recommendations to the drafters and
implementers of the Stockholm Programme, but we also address other
issues important for lawyers, namely e-Justice, lawyers’ participation
in the various European justice networks and equal access to legal
training for lawyers and the abolition of the exequatur procedure in
civil and commercial matters and the mutual recognition for
cross-border users of legal acts. 

However, by focusing on the rule of law and
fundamental rights, the CCBE is sending the message to EU
decision-makers that they are missing an important part of the picture
when they consider lawyers, as they currently tend to do, merely as
another category of service provider rather than as an essential actor
of justice. There are more and more studies, policy papers and other
documents issued by national and supranational organisations such as
the European Union which look narrowly at lawyers and the whole
European legal profession as just another market player with special
anti-competitive privileges, without taking into consideration the most
important role of the profession – to speak up in maintaining the rule
of law in a democratic society. 

The CCBE manifesto can be downloaded at the following page of the CCBE website:

The CCBE recommendations for the Stockholm Programme can be read at: