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
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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 8 November 2005
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| Previous Committee Report | HC 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)
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| To be discussed in Council | 1-2 December Justice and Home Affairs Council
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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
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
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