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 17 November 2005
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| Previous Committee Report | HC 34-x (2005-06), para 4 (16 November 2005); 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; information on progress awaited
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Background
2.1 We considered this proposal for the second time on 16 November
2005, when we held the document under scrutiny. The Parliamentary
Under-Secretary of State at the Department for Constitutional
Affairs (Baroness Ashton of Upholland) had described the latest
stage of the negotiations and had attached to her letter a Presidency
text of the draft Directive. The Minister informed us that the
informal Justice and Home Affairs Council in Newcastle in September
had agreed that proposals under Article 65 EC should be limited
to cross-border disputes. This accorded with the view which we
and the previous Committee had taken on the proper scope of measures
under Article 65 EC.
2.2 We agreed with the Minister about the benefits
of mediation and alternative dispute resolution, but we noted
that the UK Presidency had decided not to pursue the question
of defining what constituted a cross-border dispute, but to await
the outcome of discussions on the proposed Regulation creating
a European Order for Payment procedure, where the question of
defining cross-border disputes for the purposes of Article 65
EC was also in issue. The Minister informed us that as Presidency,
the UK wished to seek agreement to a general approach on the text
(apart from Article 1 which defined the objective and scope of
the measure) at the Justice and Home Affairs Council on 1 and
2 December, and for this purpose asked us to clear the proposal
from scrutiny.
2.3 Although we had no question of principle to raise
on the substance of the proposal, we remained concerned about
the use of Article 65 EC to propose measures which would affect
matters which were purely internal to a Member State. We did not
feel able to accept the Minister's invitation to clear the document
from scrutiny in the absence of confirmation from the Minister
that satisfactory terms had been agreed to limit the scope of
the measure, as required by Article 65 EC.
The Minister's reply
2.4 In her letter of 17 November 2005 the Parliamentary
Under-Secretary at the Department for Constitutional Affairs (Baroness
Ashton of Upholland) addresses these points. The Minister explains
that our concerns over the use of Article 65 EC are shared by
a majority of the Member States. The Minister also explains that
she does not now invite us to clear the whole document from scrutiny,
but only to give the Government authority to allow the UK Presidency
to obtain a general approach on the text, except for the definition
of the cross-border restriction. The Minister adds that the effect
of this would be to reach a position where the content of the
Articles is effectively "frozen" while the opinion of
the European Parliament is awaited. In the meantime, negotiations
would continue within the Council's Civil Law Committee to resolve
the cross-border issue, and the Minister undertakes to keep us
informed of these negotiations.
Conclusion
2.5 We are grateful for this helpful statement
from the Minister. We note that it is not intended to adopt the
measure in its entirety at the forthcoming Council, but to conclude
negotiations only on those parts of the text which we did not
consider raised any question of principle. The question of defining
the cross-border scope of the measure remains subject to further
negotiation.
2.6 We think this a reasonable way of proceeding,
and we look forward to an account by the Minister in due course
of the further negotiations on the cross-border issue. We shall
hold the document under scrutiny in the meantime.
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