RECOGNITION AND ENFORCEMENT OF JUDGMENTS
IN MATRIMONIAL AND FAMILY MATTERS
(20411)
8672/99
COM(99) 220
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Draft Council Regulation on jurisdiction and the recognition and
enforcement of judgments in matrimonial matters and in matters of
parental responsibility for joint children.
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| Legal base: |
Article 61(c) EC; consultation; unanimity
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| Department: |
Lord Chancellor's and Scottish Executive Justice
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| Basis of consideration:
| Minister's letter of 7 March 2000
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| Previous Committee Report:
| HC 34-xxix (1998-99), paragraph 2 (27 October 1999)
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| Discussed in Council:
| 27 March 2000 |
| Committee's assessment:
| Legally and politically important
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| Committee's decision:
| Cleared |
Background
16.1 We first reported on this proposal
on 27 October 1999. It is intended to replace a Convention ("the
Brussels II Convention") on the same subject matter (recognition
and enforcement of judgments in matrimonial cases) which failed
to secure ratification by all Member States before the Treaty
of Amsterdam came into force.
16.2 The Commission accordingly took advantage
of Article 61(c), together with Article 65, inserted into the
EC Treaty at Amsterdam as part of Title IV (the progressive establishment
of an area of freedom, security and justice), to present a draft
Regulation which reproduced that Convention.
16.3 As the Brussels II Convention represented,
in our view, a compromise between Member States of significant
benefit to the UK, the content of a draft Regulation which was
in substance the same as the final version of that Convention
raised no problems.
16.4 We were, however, struck by one aspect
of the Explanatory Memorandum; the Government clearly considered
the measure acceptable in policy terms, and had presumably notified
its wish to take part in the negotiations with a view to being
bound by the Regulation, yet it had a fundamental doubt whether
the proposal satisfied the requirement of the proposed legal base
that it must be "necessary for the proper functioning of
the internal market". We accordingly asked the Minister on
what other basis he considered its adoption feasible, if not under
Article 61(c), together with Article 65 EC, as proposed.
The Minister's letter
16.5 The Parliamentary Secretary at the
Lord Chancellor's Department (Mr Lock) has now answered our question
in a letter. He states:
"The Government sought
the opinion of Professor Wyatt QC on this treaty base issue and
it was his conclusion, and the reasoning behind it, which has
formed the basis for the Government's view.
"The current disparities in the laws of Member
States relating to the subject matter of this draft Regulation
would be likely to be regarded by the Court of Justice as hindering
or making less attractive the exercise of the right of establishment
by EU nationals. This could reasonably be regarded as inhibiting
the free movement of persons. Consequently the harmonisation envisaged
by the proposed measure could plausibly be said to contribute
to the free movement of persons and thus to affect the proper
functioning of the internal market. Such harmonisation is likely
to be accepted by the Court of Justice as 'necessary' for that
proper functioning because the Court has traditionally been reluctant
to interfere in the discretion exercisable by the Council of Ministers
in deciding whether a condition of this kind has been satisfied.
Professor Wyatt expressed the point in this way.
'If the institutions considered
that legislation is necessary then, pursuant to the normal principles
of the judicial review of a wide discretion, the Court of Justice
would not interfere with that assessment unless the institutions
were shown to have manifestly exceeded the bounds of their discretion.'
"He concluded that those bounds would not be
exceeded in the way proposed and that a challenge to the adoption
of the proposal on the ground that it was not necessary for proper
functioning of the internal market would fail. The Government
agrees with this conclusion."
Conclusion
16.6 We — like the Government —
are persuaded by the reasoning of Professor Wyatt QC. We merely
note that, on that basis, a very wide range indeed of national
measures might be held to affect the proper functioning of the
internal market. That has consequences not only for the potential
scope of Articles 61(c) and 65 EC, but also for other Treaty Articles
founded on the same concept.
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