3. National pre-deadline uses of the Directives a. The Paris template pleading In March 2013, the Conférence of the Paris Bar (a yearly cohort of young lawyers) issued a template pleading31 relying (15 months before its transposition deadline) on Article 7(1) of the Right to Information Directive, which it argues requires the provision of the police file to an arrested person’s lawyer. The pleading relies on the Kolpinguis and Wallonie cases, and argues that there is an obligation incumbent upon the national court to read the national legislation in conformity with the Right to Information Directive, obliging the judge to ensure sufficient access to materials (or a remedy in default). Though some decisions of the lower courts concurred, we are not aware of any decision prior to the Right to Information Directive’s deadline which followed this rule, which would have required a fairly significant departure from the exact text of the criminal procedure code. We would point out, though, that the initiative had the effect of placing the legislator under scrutiny.32 b. Litigation before the Dutch Supreme Court In April 2014, the Dutch Supreme Court gave a decision33 in a case raising the issue of the right to assistance of a lawyer during questioning. 34 The Court had, in 2009, found that this was not provided by national law. After this, the ECtHR gave judgments making it very clear that this was required by Article 6 ECHR,35 and, of course, the EU adopted the Access to a Lawyer Directive, Article 3(3) clearly provides that the lawyer should be able to participate effectively in questioning. The case decided in 2014 called upon the Court to establish whether such a right could be claimed in the Netherlands. This was, of course, 31 months before the transposition deadline of the Access to a Lawyer Directive. In her conclusions in the case,36 which she discussed at the LEAP Annual Conference in February 2015, Advocate General Taru Spronken suggested that, in line with the now developed ECtHR caselaw and the Access to a Lawyer Directive, the Court should find in favour of the party claiming that right. She pointed out, among others, that the Access to a Lawyer Directive merely articulated caselaw of the ECtHR (which is supposed to have direct effect in the Netherlands) and thus fell to be applied immediately. This was essentially an example of the use of the Access to a Lawyer Directive as evidence of the existence of a clear standard which should be applied in accordance with the existing constitutional arrangements, discussed above. However, the Court did not follow the reasoning, finding that it was beyond its powers to create this right which was provided by the legislation and which fell to the legislature to create. It also commented that the Access to a Lawyer Directive was not yet directly effective. As Dutch LEAP 31 Available at http://www.laconference.net/defense-penale/modeles-de-conclusions.html. See A. Tinsley, J. Finelle ‘Access to the criminal case file: French example shows potential impact of Roadmap Directives’, EUTopia, 3 June 2014, available at: http://eutopialaw.com/2014/06/03/access-to-the-criminalcase-file-french-example-shows-potential-impact-of-roadmap-directives/. 33 Hoge Raad, decision of 1 April 2014 (ECLI:NL:PHR:2014:770) (in Dutch). 34 For full discussion of the case, see Bas Leeuw ‘Does judicial restraint lead to ECHR non-compliance?’, 26 June 2014; Wouter van Ballegooij ‘Should the Dutch Supreme Court look to Strasbourg, Luxembourg or the Hague?’; Jozef Rammelt ‘And suddenly, nothing changed’, all available at www.fairtrials.org/press/. 35 See, inter alia, Navone v. Monaco App. No 62880/11 (Judgment of 24 October 2013), paragraph 79. 36 Conclusions of 26 November 2013 (ECLI:NL:PHR:2013:1424) (in Dutch). 32 17