5 ACCESSION OF THE EUROPEAN
COMMUNITY TO THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW
(27119)
15835/05
COM(05) 639
| Proposal for a Council Decision on the accession of the European Community to Hague Conference on private international law
|
| Legal base | Articles 61(c) 300(2) and 300(3) EC; assent; unanimity
|
| Document originated | 9 December 2005
|
| Deposited in Parliament |
20 December 2005 |
| Department | Constitutional Affairs; Scottish Executive Justice Department
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| Basis of consideration |
EM of 6 January 2006 |
| Previous Committee Report |
None |
| To be discussed in Council
| No date set |
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
5.1 The Hague Conference on Private International Law is an international
body which is established to work for the progressive unification
of rules of private international law.[17]
The first session of the Hague Conference was convened by the
government of the Netherlands in 1893. The Conference adopted
a Statute in 1951 which made the Conference a permanent international
body, with a Permanent Bureau based in the Hague. The present
membership of the Hague Conference numbers 65 states, including
all EU Member States, the United States, Australia, Canada, New
Zealand, China and the Russian Federation.
5.2 Under the current Statute, only a state may be
a member of the Conference, but in June 2005 amendments to the
Statute were agreed by members of the Conference which would permit
the participation of regional economic integration organisations,
such as the European Community. The amendments to the Statute
require the approval of two-thirds of the members, but the Commission
considers it probable that such approval will be achieved by March
2006.
5.3 At present, the Commission attends meetings of
the Hague Conference as an observer, but argues that, with the
development of Community external competence deriving from the
adoption of measures under the EC Treaty on judicial cooperation
in civil matters, the European Community should become a full
member of the Hague Conference. In practice, this would mean that
the Commission would attend, speak and vote at the Conference
alongside, or in place of, the Member States.
The proposed Council Decision
5.4 The proposed Council Decision provides that the
European Community shall accede to the Hague Conference on Private
International Law by making a declaration that it accepts the
Statute of the Hague Conference. Provision is made for this declaration
to be made as soon as the Conference has made a formal decision
to admit the European Community as a member. Provision is also
made for a declaration of competence specifying those matters
in respect of which competence has been transferred from the Member
States to the European Community.
5.5 To justify these proposals, the Commission's
explanatory memorandum refers to the Treaty amendments made by
the Treaty of Amsterdam (and which now appear as Article 61(c)
and 65 EC) by which "the European Community has the competence
to adopt measures in the field of judicial cooperation in civil
matters having cross-border implications insofar as necessary
for the proper functioning of the internal market". The Commission
points out that the Community has "exerted this newly acquired
competence" by adopting a number of instruments which partly
or fully overlap with those elaborated by the Hague Conference.
5.6 In this connection, the Commission refers to
Council Regulation (EC) 1348/2000 on the service in the Member
States of judicial and extra-judicial documents,[18]
which it describes as covering the same matters as the 1965 Hague
Convention of the Service Abroad of Judicial and Extra-judicial
Documents, and to Council Regulation (EC) 1206/2001,[19]
which is said to overlap with the 1970 Hague Convention on the
Taking of Evidence. The Commission states that the 1980 Hague
Convention on the Civil Aspects of Child Abduction and the 1996
Hague Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in respect of Parental Responsibility
and Measures for the Protection of Children "partly overlap"
with Council Regulation (EC) 2201/2003 on jurisdiction and the
recognition and enforcement of judgments in matrimonial matters
and matters of parental responsibility.[20]
Finally, the Commission refers to the 2005 Hague Convention on
Choice of Court Agreements and the draft Convention on Maintenance
Obligations as covering areas governed by Council Regulation (EC)
44/2001 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters.[21]
5.7 The Commission memorandum states that the adoption
of these instruments "entailed an implicit transfer of external
competences in the areas covered by them from the Member States
to the Community", and argues that, in view of these newly
acquired external powers and its increasing involvement in the
work of the Hague Conference, it has become necessary for the
Community to become a full member. The argument is taken further,
as follows:
"From a political point of view, membership
would grant the Community a status consistent with its new role
as a major international player in the field of civil judicial
cooperation. From a legal point of view, membership would enable
the Community to fully participate in the negotiations of conventions
in areas of its competence by expressing its views and positions
and ensuring the consistency and coherence between its own rules
and envisaged international instruments. Moreover, the Community
as such rather than its Member States would be the subject of
the rights and obligations stemming from Hague Conventions in
areas of its competence."
5.8 The memorandum points out that the Statute of
the Hague Conference has had to be amended so as to permit the
accession of regional economic integration organisations (such
as the European Community). Such amendments to the Statute require
the approval of two-thirds of the members of the Conference, and
the Commission expects the formal decision to admit the Community
as a member to be taken in the first week of July 2006. The amendments
to the Statute provide that a regional economic integration organisation
may cast a number of votes equivalent to the number of its member
States when the Conference is dealing with a matter within the
organisation's competence. (The European Community would, therefore,
have 25 votes out of 65.)
5.9 The amendments to the Statute also require the
acceding organisation to submit to the Conference a declaration
of competence specifying the matters in respect of which competence
has been transferred to it by its Member States. The Statute further
provides that Member States of such an organisation shall be presumed
to retain competence over all matters in respect of which transfers
of competence have not been specifically declared or notified.
5.10 The proposed declaration of Community competence
is set out in Annex II to the proposed Council Decision. The declaration
asserts competence in relation to the matters under Title IV of
the EC Treaty (measures in the field of judicial cooperation in
civil matters having cross-border implications insofar as necessary
for the proper functioning of the internal market) and refers
to the measures which have been adopted under these provisions.
The declaration also states that the Community has competence
in other fields, such as the internal market (Article 95 EC) or
consumer protection (Article 153 EC), which may form the subject
of conventions adopted by the Hague Conference, and also notes
that provisions on private international law may be found in other
Community legislation, notably on consumer protection, insurance,
financial services and intellectual property.
5.11 The declaration also asserts competence to conclude
international agreements whenever the competence to adopt internal
rules has already been exercised in order to adopt measures for
implementing the common policies referred to or "if the international
agreement is necessary to obtain [sic] one of the Community's
objectives". In support of this statement, the Commission
relies on the judgments of the European Court of Justice in Commission
v. Council ("AETR")[22]
and Commission v. Denmark ("open skies").[23]
The Commission goes on to state that the European Community's
external competence is exclusive to the extent to which an international
agreement affects internal rules or alters their scope and that
where this is the case "it is not for the Member States but
for the Community to enter into external undertakings with third
states or international organisations". However, the Commission
also points out that an international agreement may fall entirely
or only to some extent within exclusive Community competence.
5.12 A further annex (Annex III) to the proposed
Council Decision contains a declaration that the European Community
will endeavour to examine whether it is in its interest to be
party to any of the existing Hague Conventions and where this
is so, the Community — in cooperation with the Hague Conference
— "will make every effort to overcome the difficulties
arising from the absence of a clause providing for the accession
of a regional economic integration organisation to these Conventions".[24]
The Government's view
5.13 In her Explanatory Memorandum of 6 January 2006,
which is submitted by the Department for Constitutional Affairs
and the Scottish Executive Justice Department, the Parliamentary
Under-Secretary of State at the Department for Constitutional
Affairs (Baroness Ashton of Upholland) explains that in accordance
with Article 3 of the Protocol on the position of the United Kingdom
and Ireland in relation to measures under Title IV of the EC Treaty,
the Government will have to decide on whether to take part in
the adoption of this Council Decision.
5.14 However, the Minister also indicates that the
Government supports the proposal. The Minister considers that
the participation of the Community as a full member "will
not in any significant way affect the practical conduct of negotiations"
noting that the Commission already plays a full part in such negotiations,
albeit only as an observer. The Minister adds that the proposal
will "not affect the extent or application of external Community
competence in that forum", but will reflect the reality that
there is an "ever-increasing degree of Community competence
in the area of private international law" and will "remove
the current anomalous position of the Commission as a mere observer"
as well as encouraging better cooperation in future between the
Community and the Conference.
Conclusion
5.15 We infer from the Minister's comments that
the Government has decided in principle to opt into this measure,
but we ask the Minister to confirm if such a decision has been
taken.
5.16 As for the substance of the proposal, we
note the Minister's statement that it does not affect the extent
or application of external Community competence. However, we also
note that by virtue of its Statute the Hague Conference is established
to work for "the progressive unification of the rules of
private international law", which appears to us to be a wider
concept than the matters referred to in Article 65 EC. Moreover,
the work of the Hague Conference, unlike that of the European
Community, is not confined to civil cooperation in matters having
cross-border implications insofar as necessary for the proper
functioning of the internal market. We therefore have a concern
that, through membership of the Hague Conference, the competence
of the Community will indeed expand to include the "unification
of the rules of private international law", and we ask the
Minister to comment on this concern.
5.17 We also note the Minister's statement that
Community membership will not affect the practical conduct of
negotiations to any significant extent, but it is apparent that,
by virtue of the amendments to the Statute, the Community (in
practice the Commission) will exercise 25 of the current 65 votes
in the Conference, and we ask the Minister if this will not unbalance
the operation of the Conference.
5.18 We also ask the Minister if the Government
agrees with the terms of the proposed declaration of competence
to be annexed to the proposed Council Decision.
5.19 We shall hold the document under scrutiny
pending the Minister's reply.
17 Such as the rules in each country which determine
jurisdiction or the system of law which is to be applied to a
dispute. Back
18
OJ No L 160 of 30.06.2000. Back
19
OJ No L 174 of 27.06.2001, p.1. Back
20
OJ No L 338 of 23.12.2003, p.1. Back
21
OJ No L 12 of 16.1.2001, p.1. Back
22
[1971] ECR 263. Back
23
[2002] ECR I - 9519. Back
24
The declaration does not further explain how such accession might
be achieved without amending each of the conventions concerned. Back
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