Select Committee on European Scrutiny Tenth Report


4 Mediation in civil and commercial matters

(26068)

13852/04

COM(04) 718

+ ADD 1

Proposal for a Directive on certain aspects of mediation in civil and commercial matters

Legal baseArticle 61(c) EC; co-decision; QMV
DepartmentConstitutional Affairs
Basis of considerationMinister's letter of 8 November 2005
Previous Committee ReportHC 34-v (2004-05), para 10 (12 October 2005); HC 38-ix (2004-05), para 2 (23 February 2005): HC 38-i (2004-05), para 6 (1 December 2004)
To be discussed in Council1-2 December Justice and Home Affairs Council
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Background

4.1 The previous Committee considered this proposal for a Directive under Article 65 EC on 1 December 2004. The Committee disagreed with the assertion by the Commission that the proposal was properly based on Article 65 EC, since it would extend to all civil and commercial matters and not just those with a cross-border element.[7] The Committee also noted that, as was apparent from its own explanatory memorandum, 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.

4.2 We considered the Minister's reply to these concerns on 12 October, when we took note of the letter of 5 August from the Parliamentary Under-Secretary of State at the Department for Constitutional Affairs (Baroness Ashton of Upholland). The Minister explained that a clear majority of Member States took the view that proposals under Article 65 EC must be limited to cross-border disputes.

4.3 We agreed with the Minister about the benefits of mediation and alternative dispute resolution, but we noted that there remained the question of the lawfulness of this measure, which appeared not yet to have been resolved, and we therefore held the document under scrutiny until such time as it was confirmed that the proposal would be limited to cross-border disputes, as is required by Article 65 EC.

The Minister's letter

4.4 In her letter of 8 November 2005 the Parliamentary Under-Secretary of State at the Department for Constitutional Affairs (Baroness Ashton of Upholland) describes the latest stage of the negotiations and attaches to her letter a Presidency text of the draft Directive.

4.5 On the central issue of the use of Article 65 EC as the legal base, the Minister informs us that the informal Justice and Home Affairs Council in Newcastle in September agreed that proposals under Article 65 EC should be limited to cross-border disputes. The Minister records that the Commission agreed with this view, subject to definitions of what constituted a cross-border dispute, but that the Commission had also argued that because the nature of mediation is different from court processes, such as those for the Order for Payment procedure, it would not be appropriate to have the same definitions in each instrument.

4.6 The Minister adds that it is for this reason that the UK Presidency has decided not to pursue the question of the definition of a cross-border dispute at this time, but "rather to concentrate on a definition for the Order for Payment and await the outcome of those discussions". The Minister nevertheless reiterates that a majority of Member States maintain the view that Article 65EC should be limited to cross-border disputes.

4.7 The Minister wishes us to be aware that as Presidency, the UK would like to obtain agreement to a general approach on the text (apart from Article 1 which defines the objective and scope of the measure) at the Justice and Home Affairs Council on 1 and 2 December. In the light of this concern, the Minister asks us to clear the proposal from scrutiny.

Conclusion

4.8 As we and our predecessors have stated in earlier reports, we agree with the Minister about the benefits of mediation and alternative dispute resolution. We also have no question of principle to raise on the substance of the proposal.

4.9 However, we remain concerned about the use of Article 65 EC to propose measures which would affect matters which are purely internal to a Member State, and we recall that it was the Commission's clear intention that this proposal should have that effect. As we have also stated before, this issue concerns the lawfulness of the proposal, and we do not consider that we can properly clear the proposal from scrutiny in circumstances where its objective and scope (and hence its legality) have not been clearly expressed. We must therefore decline the Minister's invitation to clear the measure from scrutiny, pending confirmation from the Minister of the adoption of satisfactory terms for Article 1.


7   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


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2005
Prepared 25 November 2005