Both in terms of the architectural backdrop and of the weather, Palma de Mallorca was a perfect venue for the ECBA’s fall conference of 2017.

The conference opened with a reception on Friday in the beautiful courtyard of the Casa Balaguer made available to us by the City Council of Palma. Jaime Campaner Muñoz who helped organising the conference welcomed the delegates to Palma and Aligi Molina from the City Council added his. Both made the delegates feel very welcome.

The Conference was opened by Enrique Braquehais Conesa, Solicitor-General and Law Officer of the Spanish Government, welcoming the ECBA to Spain. Enrique Braquehais Conesa spoke briefly on the importance of the rule of law in protecting democracy and individual rights. ECBA Chairman Holger Matt replied and thanked the representatives of the Balearic Islands Bar Association for their assistance in organising the conference in Palma de Mallorca.

The first morning panel was chaired by Kevin Roberts and explored the current challenges in Europe regarding investigation and prosecution. Nicolás Pérez-Serrano de Ramón, Prosecutor in Palma de Mallorca spoke about the advantages of the new instrument of the European Investigation Order. In this context, Nicolás Pérez-Serrano de Ramón pointed out that the E.I.O. could also be issued on the request of the defence to obtain exculpatory evidence in another jurisdiction. Madrilenian defence lawyer Juan Palomino then went in to the recent football cases in Spain, in which several famous football players are being investigated or prosecuted for tax fraud. Based on the judgement in the Messi-case, Juan Palomino illustrated the type of tax structures that are used in these cases and what the Spanish Courts’ opinion on the participation in such structures is. Finally, Keily Blair, UK defence lawyer, went into the details of the new crime in the United Kingdom, the “failure to prevent facilitation of UK or international tax evasion offences”. These new offences have been modelled on art. 7 of the UK Bribery Act and have significant extraterritorial impact, since the evasion of a UK tax is in itself sufficient nexus for prosecution in the UK, regardless of whether any part of the acts have been committed in the UK.

The second panel of the day provided an overview of the diverse activities the ECBA is currently engaged in. Vânia Costa Ramos highlighted the work of the ECBA’s Human Rights Committee. Rebecca Niblock presented the second edition of the EAW Handbook. Hans van de Wal reported on the work of the working group on Money Laundering. ECBA Chair Holger Matt talked about the ECBA’s new Road Map for further procedural safeguards, also known as the ECBA’s Agenda 2020. Finally, Oliver Kipper reported on the last conference of the association of European Fraud and Compliance Lawyers (EFCL, a sub-association of the ECBA) held in Frankfurt in June 2017 and looked forward to the upcoming EFCL conference in Milan on 8 June 2018.

The last set before the lunch break was reserved for James MacGuill, Dublin, Chair of the CCBE-CLC and Peter McNamee, Senior Legal Advisor from Brussels. They talked about recent legislative initiatives by the European Commission, and the role of the CCBE in bringing human rights and defence rights arguments to the table of the European Legislature.

After the lunch break, the conference continued with a panel on different standards in trials. Prompted by questions from Chair Holger Matt, Ilias Anagnostopoulos from Greece, Marie Guimard from France, Gwen Jansen from the Netherlands, Roberto Mazorriaga Las Hayas from Palma de Mallorca, Max Müller from Germany and Henrik Stagetorn from Denmark discussed the differences in the national systems on such diverse issues as the way in which the prosecution has to bring formal charges against a defendant, whether additional charge may be brought at a later stage of a trial, whether and how judges suspected of prejudice against the defendant could be disqualified and whether legal assistance by counsel during trial was possible in view of the physical layout of the courtroom. The differences between the jurisdictions on these areas proved to be remarkable.

Next followed the “anniversary panel”: in celebration of its 20th anniversary, former ECBA Chair Han Jahae engaged the ECBA’s founding fathers Rock Tansey (United Kingdom), Franz Salditt (Germany) and Mischa Wladimiroff (Netherlands) in a discussion on their reasons for founding the ECBA and their views regarding the role the ECBA could or should play in the future.

Traditionally, the last panel of the conference was reserved for brief presentations on legal developments in different member states. Chaired by Jaime Campaner Muñoz (Mallorca), the contributions for this conference came from Enrico Di Fiorino (Italy), Ben Keith (United Kingdom), Jason Masimore (US/UK) and Andreas Pollak (Austria). The most poignant contribution came from Dominika Stępińska-Duch. In just 5 minutes she sketched in stark terms the rapid dismantling of judicial independence and the rule of law in Poland. Reflecting on Dominika Stępińska-Duch’s contribution, the delegates of the conference voted to have the Board of the ECBA issue a public statement, expressing the ECBA’s concern about the developments in Poland.

Dian Brouwer