1 Adoption by co-decision
of measures relating to maintenance obligations
| (27198)
5198/06
COM(05) 648
| Commission Communication to provide for measures relating to maintenance obligations taken under Article 65 EC to be governed by the procedure laid down by Article 251 of that Treaty
|
| Legal base | Article 67(2)EC; consultation; unanimity
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| Document originated | 15 December 2005
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| Deposited in Parliament | 18 January 2006
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| Department | Constitutional Affairs
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| Basis of consideration | EM of 8 February 2006
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| Previous Committee Report | None; but see para 3 of this report
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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 | For debate in European Standing Committee B
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Background
1.1 Title IV of the EC Treaty provides for the adoption of measures
in the field of judicial cooperation in civil matters. By virtue
of Article 67(5) EC, measures in this field are taken using the
procedure set out in Article 251 EC (i.e. co-decision with the
European Parliament and qualified majority voting within the Council).
However, Article 67(5) EC, as amended by the Treaty of Nice,[1]
provides an exception so that "aspects relating to family
law" must be taken by unanimity within the Council (and after
consultation of the European Parliament).
1.2 By virtue of Article 67(2) EC, the Council, acting
unanimously and after consulting the European Parliament, may
take a decision to provide that all or parts of the areas covered
by Title IV shall be governed by the co-decision procedure. This
procedure is sometimes referred to by the Commission and others
as the "passerelle",[2]
and it would have the effect of overriding the exception provided
for in the EC Treaty.
The Commission's communication
1.3 The Commission communication sets out the case
for a decision under Article 67(2) EC which would bring measures
relating to maintenance obligations within the voting regime for
other civil judicial cooperation measures. The communication notes
that maintenance obligations are within the scope of Council Regulation
(EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters[3]
and Regulation (EC) No 805/2004 of 21 April 2004 creating a European
Enforcement Order for uncontested claims (the "EEO Regulation").[4]
However, the communication notes that maintenance obligations
are expressly excluded from the scope of Council Regulation (EC)
No 2201/2003 concerning jurisdiction and the recognition and enforcement
of judgments in matrimonial matters and matters of parental responsibility.[5]
1.4 The communication further states that the envisaged
proposal on maintenance obligations[6]
is intended to enable maintenance creditors to obtain an enforcement
order easily, quickly and, wherever possible, free of charge which
can then enjoy freedom of movement in the "European law-enforcement
area". The communication refers to "this new legal environment"
which "calls for action consisting of more than cosmetic
changes" involving measures in relation to international
jurisdiction, applicable law, recognition and enforcement, "cooperation
and removal of barriers to smooth procedures" and measures
to provide for "better access to information concerning the
situation of debtors wherever they live in the European Union".
The communication indicates that these matters would be brought
together as far as possible into a single Community regulation.
1.5 In the next part of the communication, under
the rubric "The Problem", the Commission notes that
a proposal of the above sort would be one which related to family
law, and would therefore require unanimity in the Council. The
communication then seeks to argue that, whereas it is clear that
matrimonial matters and parental responsibility are "aspects
relating to family law" within the meaning of Article 67(5)
EC, the recovery of a maintenance obligation is a "claim
and is subject to legal rules that differ little from the general
rules governing asset-related claims". It argues that a maintenance
claim is no more than a pecuniary claim which does not concern
the "core aspect of family relationships". The communication
refers to the unanimity rule as ensuring that no provisions of
Community law could be adopted without the agreement of each Member
State on anything "that could concern personal relationships
within the family, in particular following a separation: custody,
visiting rights, consequences of unlawful removal of children,
and so on", but suggests that the "link with the equilibrium
of the family relationship" is less direct with maintenance
obligations, and represents a situation where, in the Commission's
view, application of the unanimity rule in Article 67(5) "gives
particularly unsatisfactory results".
1.6 The communication proposes that maintenance obligations
should be transferred from unanimity to the co-decision procedure.
It suggests that to create a "passerelle" between
unanimity and co-decision procedure would be "doubly advantageous".
First, it is suggested that recovery of a maintenance claim "does
not go to the core" of family relationships, and that, unlike
a decision on visiting rights, "implementing a maintenance
decision has no effect on the fundamental nature and expression
of personal relationships between members of the family".
It is concluded that "the unanimity rule, which is designed
above all to reflect the Member States' differing rules governing
the organisation of the family, accordingly cannot be justified
in matters of maintenance obligations". Secondly, it is argued
that use of a "passerelle" would allow the same
legislative procedure, with the same prerogatives of the European
Parliament, to be applied to maintenance obligations as is applied
to instruments, such as the European Enforcement Order, dealing
with ordinary claims. The communication concludes that "it
would be legally appropriate and politically desirable for the
co-decision procedure established by Article 251 of the Treaty
to be applied to maintenance obligations".
1.7 Attached to the communication is a draft Council
Decision, the operative part of which provides that the Council
shall act in accordance with the procedure laid down in Article
251 EC "when adopting measures relating to maintenance obligations".
The Government's view
1.8 In her Explanatory Memorandum of 8 February 2006
the Parliamentary Under-Secretary of State at the Department for
Constitutional Affairs (Baroness Ashton of Upholland) notes that
the Commission's communication is submitted alongside its proposal
for a Regulation concerning jurisdiction, applicable law, recognition
and enforcement of decisions and cooperation in matters relating
to maintenance obligations.[7]
The Minister notes that the communication "is clearly designed"
to initiate a debate in the Council on whether decisions on family
maintenance should be subject to unanimity, and the consultation
procedure, or qualified majority voting and co-decision.
0.9 The Minister comments further as follows:
"The Government understands the Commission's
difficulty. In principle, the Government would support effective
mutual recognition and enforcement of maintenance obligations,
yet this may well meet obstacles when unanimity is required.
"However, the present proposal on maintenance
obligations goes significantly further than mutual recognition
and covers more difficult questions including rules of applicable
law. The Government is not persuaded that qualified majority voting
is appropriate as regards questions of this kind. Were a decision
to use the passerelle to be proposed, the Government would
want to ensure that its focus was clear and appropriately narrow.
"Having regard to these considerations among
others, the Government will consider further, in discussions with
the Commission and our European partners, the extent to which,
if at all, measures concerning maintenance obligations might be
agreed by qualified majority voting."
Conclusion
1.9 We do not find the Commission's arguments
for moving to qualified majority voting in this sensitive area
to be at all persuasive. If the advantages of a Community Regulation
in relation to the enforcement of maintenance obligations are
so self-evident, then we question why the Commission should regard
the requirement for unanimity as a "problem".
1.10 The Commission's communication amounts to
arguing the case for what is in substance a Treaty revision. The
provision preserving the unanimity rule for measures on "aspects
relating to family law" was adopted as recently as the Treaty
of Nice in 2001, and we note that the same rule was reproduced
in Article III-269(3) of the Constitution Treaty.
1.11 The Minister gives no clear indication as
to whether the UK would opt in to the envisaged Council Decision.
The proposed Community Regulation on maintenance obligations does
contain rules relating to applicable law and appears to require
UK courts to apply foreign law, but this is not the current practice,
since the domestic law of the forum is applied. We infer from
the Minister's remarks that the UK would not be in favour of qualified
majority voting for such an instrument, but on the other hand,
the Minister also appears to entertain the possibility of measures
relating to maintenance obligations being adopted by QMV and co-decision.
1.12 Given the importance of the issue of voting
procedure for measures adopted under the EC Treaty, we consider
that the questions raised by the document should be debated in
European Standing Committee.
1 The amended version came into force on 1 February
2003. Back
2
The previous Committee referred to it as a 'gangplank'. Back
3
OJ No. L 12, 16.1.2001. The so-called 'Brussels I' Regulation
converted the 1968 Brussels Convention on jurisdiction and the
recognition and enforcement of judgments in civil and commercial
matters into a Community Regulation. Back
4
OJ No. L 143, 30.4.2004, p.15. Back
5
OJ No. L 338, 23.12.2003, p. 1. Back
6
See (27199) para 3 of this report. Back
7
See (27199), para 3 of this Report. Back
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