2 Mediation in civil and commercial matters
| (26068)
13852/04
COM(04) 718
+ ADD 1
| Draft Directive on certain aspects of mediation in civil and commercial matters
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| Legal base | Article 61(c) EC; co-decision; QMV
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| Department | Constitutional Affairs
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| Basis of consideration | Minister's letter of 26 January 2005
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| Previous Committee Report | HC 38-i (2004-05), para 6 (1 December 2004); and see (23438) 8336/02: HC 152-xxxv (2001-02), para 12 (3 July 2002) and HC 63-i (2002-03), para 26 (20 November 2002)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
2.1 We considered a Green Paper from the Commission on alternative
dispute resolution (ADR) on 3 July and 6 December 2002.
2.2 The Commission Green Paper led to a draft Directive
which we considered on 1 December 2004. We noted the assertion
by the Commission that its proposal was properly based on Article
65 EC, even though it would extend to all civil and commercial
matters and not just those with a cross-border element.[5]
We noted (but disagreed with) the conclusion reached by the Commission
that limiting the scope of the proposal to cases with cross-border
implications would "invalidate the objectives of the proposed
directive and be counterproductive to the proper functioning of
the internal market". We believed the Minister to be entirely
right in questioning the Commission's legal authority to propose
a measure under Article 65 EC which was not limited to cross-border
mediations. We noted that it was apparent from its own explanatory
memorandum that the Commission had set out deliberately to disregard
the requirement in Article 65 EC that the matter must have cross-border
implications before Community action was justified.
2.3 In these circumstances, we asked the Minister
if the Government would exercise its right not to opt in to the
measure. We also noted the Minister's concern that the
proposal would also cover mediation of family disputes and might
therefore concern "aspects relating to family law",
thus requiring the measure to be adopted by unanimity, in accordance
with Article 67(5) EC. We asked the Minister to inform us, before
any decision was taken to opt in to this measure, of the outcome
of the Government's consideration of this point.
The Minister's reply
2.4 The Parliamentary Under-Secretary of State at
the Department for Constitutional Affairs (Baroness Ashton of
Upholland) has replied in her letter of 26 January 2005. On the
question of the use of Article 65 EC as the legal base for the
proposal, the Minister says:
"We have always maintained that Article 65 has
a limited application to cross-border disputes only and we have
taken this position throughout in regard to this proposal and
other matters in the Civil Law Committee. As a significant number
of other Member States share our view we believe the probability
is that there will be changes to the current proposal."
2.5 In relation to a decision by Government on whether
to opt into this proposal, the Minister replies that the Government
will follow the policy set out in a Written Answer of 12 March
1999.[6] This states that
the Government is "interested in developing co-operation
with European Union partners in the civil judicial co-operation
measures of the Free Movement Chapter". The Minister adds
that "as a strong supporter of mediation and other methods
of Alternative Dispute Resolution the Government will also take
account of the fact that there will be significant benefits to
citizens and businesses in an instrument which provides a framework
for mediation in cross-border disputes and promotes the use of
mediation in Member States".
2.6 On the use of the co-decision procedure for a
measure which might concern "aspects relating to family law"
as referred to in Article 67(5) EC, the Minister comments that
qualified majority voting, rather than unanimity, would apply
to these measures "on the basis that the key objective of
the Directive is to facilitate alternative methods of settling
disputes and to simplify access to justice in civil and commercial
matters". The Minister further comments that the measure
"touches on family matters, rather than being primarily concerned
with those questions". The Minister concludes that the Government
takes the view that it is permissible for the Directive to be
taken forward under qualified majority voting and the co-decision
procedure, and that the second part of Article 67(5) EC does not
apply. The Minister adds that this would not be the case with
a Directive which was primarily concerned with family mediation.
Conclusion
2.7 We thank the Minister for her letter. We note
the Minister's remarks on the question of whether to opt in to
this measure, but we are surprised that the Minister should be
willing to take the risk of opting in to a measure, the scope
of which so clearly and deliberately exceeds the powers conferred
by Article 65 EC, in the hope that other Member States will subsequently
join the UK in securing a reduction in its scope in the course
of negotiations. Such a strategy courts the risk of becoming unable
to withdraw from a measure which is not validly based on Article
65 EC. We invite the Minister's comments on how this risk might
be avoided or minimised.
2.8 We note the Minister's comments on the exception
under Article 67(5) EC which preserves unanimity for measures
with "aspects relating to family law". It is arguable
that measures which affect family law only marginally or incidentally
might not fall within this reserved area. Whether that is so in
this case will depend on the outcome of the negotiations, and
we invite the Minister's comments on whether it might be simpler
to make clear on the face of the proposal that it does not apply
to "aspects relating to family law".
2.9 We shall hold the document under scrutiny
pending the Minister's reply.
5 Article 65 EC provides that "measures in the
field of judicial cooperation in civil matters having cross-border
implications, to be taken in accordance with Article 67 and in
so far as necessary for the proper functioning of the internal
market, shall include:
…(c ) eliminating obstacle to
the good functioning of civil proceedings, if necessary by promoting
the compatibility of the rules on civil procedure applicable in
the Member States." Back
6
HC Deb, 12 March 1999 col. 381. Back
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