12 Recognition and Enforcement of Judgments
| (28799)
11784/07
COM(07) 387
| Draft Council Decision concerning the signing of the Convention between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
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| Legal base | Article 61(c), 300(3) EC; QMV
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| Document originated | 6 July 2007
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| Deposited in Parliament | 18 July 2007
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| Department | Ministry of Justice; Scottish Cabinet Secretary for Justice
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| Basis of consideration | EM of 20 August 2007
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| Previous Committee Report | None
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| To be discussed in Council | —
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
12.1 As long ago as 1968 the then Member States negotiated a Convention
on jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters (the 1968 Brussels Convention).
Further adaptations were made to the Brussels Convention to provide
for the accession of new Member States, including the UK, and
provision was made for the application of the Convention in domestic
law by the Civil Jurisdiction and Judgments Act 1982.
12.2 A further convention was negotiated in 1985-1988
by the then Member States with Austria, Iceland, Finland, Norway,
Sweden and Switzerland. The negotiations led to the adoption of
the Lugano Convention of 1988. The Lugano Convention was closely
aligned to the Brussels Convention (and during its negotiation
was referred to informally as the 'Parallel Convention'), with
the result that a near uniform system of rules on jurisdiction
and the recognition and enforcement of judgments in civil and
commercial matters applied across Western Europe.
12.3 This uniformity was brought to an end by the
adoption of Regulation (EC) No 44/2001 which restated, with amendments,
the provisions of the 1968 Brussels Convention, as an EC Regulation.
The adoption of this Regulation followed the coming into force
of the Amsterdam Treaty in 1999, which made the matters covered
by the 1968 Brussels Convention ones of Community policy under
Title IV of the EC Treaty (Articles 61(c) and 65 EC). Not only
did Regulation (EC) No 44/2001 differ from the Brussels Convention
and the Lugano Convention, it also did not apply to Denmark, since
that country does not participate in measures adopted under Title
IV EC. For a period, therefore, the Brussels Convention (which
did apply between all Member States) was replaced by Regulation
(EC) No 44/2001 which did not. This situation was eventually resolved
by an agreement between the European Community and Denmark which
applied the provisions of Regulation (EC) No 44/2001 from July
of this year.
12.4 The amendments made to the Brussels Convention,
and which were incorporated in Regulation (EC) No 44/2001, were
reflected in a parallel set of amendments to the Lugano Convention.
However, the conclusion of an amending agreement was delayed by
a dispute between the Commission and the Council over competence
to conclude a new Lugano Convention. In 2002 the Commission had
asserted that the matter was one of Community competence and presented
to the Council a draft Decision authorising the Commission to
conduct the negotiations. The Council decided in 2003 to request
an opinion from the ECJ on the question of whether the new Lugano
Convention fell within the exclusive competence of the Community
or whether competence was shared between the Community and the
Member States. In Opinion 1/03 of 7 February 2006, the ECJ decided
that the new Lugano Convention fell within the exclusive competence
of the Community.
The draft Council Decision
12.5 The draft Council Decision approves the text
of the revised form of the Lugano Convention and authorises the
President of the Council (or a person designated) to sign the
agreement on behalf of the European Community.
12.6 The revised form of Lugano Convention incorporates
the amendments agreed in 1999 and adapts the Convention to accommodate
the position of Denmark, which will become a party to the Convention,
separately from the European Community, as Denmark is not bound
by Regulation (EC) No 44/2001.
The Government's view
12.7 In her Explanatory Memorandum of 20 August,
the Parliamentary Under-Secretary of State at the Ministry of
Justice (Bridget Prentice) provides a helpful explanation of the
history of the matter and points out that the purpose of the instrument
is to "restore for the 'Lugano' countries an earlier alignment
with the rules in this area operating within the Community which
was disrupted when the Community Regulation was adopted in 2001".
12.8 On the policy implications of the measure, the
Minister comments as follows:
"The current lack of alignment between the Brussels
I Regulation and the 1988 Lugano Convention is unsatisfactory.
Not only does it deprive parties involved in proceedings in Switzerland,
Norway and Iceland of the benefit of the revised and improved
rules in the former instrument, but also in their relations with
those countries the Member States of the European Community are
obliged at the moment to continue to apply the unrevised rules
in the latter agreement. This application of two somewhat different
sets of rules in the same subject area is unnecessarily complex,
particularly for commercial operators who routinely trade internationally.
The proposed agreement will correct those deficiencies."
Conclusion
12.9 We agree that the proposed agreement will
correct the deficiencies which the Minister has identified and
will restore the uniformity which once applied to rules on jurisdiction
and the recognition of civil judgements between EC and EFTA states.
12.10 We draw the attention of the House to the
history of this matter as an illustration of the complexities
which arise when a matter is transferred to Title IV EC and becomes
subject to exclusive Community competence.
12.11 We now clear the document.
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