12 Bilateral Agreements
| (30333)
5146/09
COM(08) 894
| Draft Council Regulation establishing a procedure for the negotiation and conclusion of Bilateral Agreements between Member States and third countries concerning sectoral matters and covering jurisdiction, recognition and enforcement of judgments and decision in matrimonial matters, parental responsibility and maintenance obligations, and applicable law in matters relating to maintenance obligations
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| Legal base | Articles 61, 65 and 67(5) EC Treaty; unanimity; consultation
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| Department | Ministry of Justice
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| Basis of consideration | Minister's letter of 18 March 2009
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| Previous Committee Report | HC 19-vi (2008-09), chapter 3 (4 February 2009)
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| To be discussed in Council | 6/7 April 2009 (possibly), June 2009 JHA Council (probably)
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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 The external competence of the Community is its capacity
to act separately from its Member States internationally, in particular
to negotiate and conclude binding international agreements and
to belong to, and participate in, international organisations.
The Community's external competence may be either exclusive or
shared. Where the Community has exclusive external competence,
Member States have no further power to act internationally in
respect of that subject-matter. The European Court of Justice
has determined that the Community's external competence will normally
be exclusive if, inter alia, an agreement falls into an
area of law which, internally, is already largely covered by Community
rather than national law, or if the effectiveness or purpose of
Community's internal rules may be adversely affected or undermined
by an international agreement concluded by Member States. The
Community's external competence may thus be exclusive in areas
of law where it only has shared internal competence.
The document
12.2 The purpose of this document is to establish a procedure
to enable Member States in future to negotiate and conclude bilateral
agreements with third countries in various international family
law areas. This procedure would, on certain conditions being satisfied,
enable the Commission to authorise such negotiations and their
conclusion.
12.3 These subject areas are now covered by Community
legislation, in particular by:
- EC Regulation No. 2201/2003
concerning jurisdiction and the recognition and enforcement of
judgments in matrimonial matters and matters of parental responsibility;
and
- EC Regulation No. 4/2009 on jurisdiction, applicable
law, recognition and enforcement of decisions and cooperation
in matters relating to maintenance obligations.
The consequence of this Community legislation which
now largely covers the areas of conflict of laws in matrimonial
law, is in principle to establish external Community competence
in these areas. This has had the result that Member States are
generally prevented from entering into bilateral agreements which
deal with topics that fall within the scope of this legislation.
The proposed regulation would limit the scope of the Community's
exclusive competence, establish shared external competence between
the Community and its Members in this field, and ensure that Member
States may continue to negotiate bilateral agreements with third
countries in an area of law where the Community has in recent
years largely 'occupied the legislative field.'
The Government's view
12.4 In his Explanatory Memorandum of 22 January
2009 the Parliamentary Under- Secretary at the Ministry of Justice
(Lord Bach) outlines the Government's position in the following
terms:
"The Government is in principle supportive of
the underlying aim of this proposal which is to introduce some
degree of flexibility into the rigidity of the doctrine of external
Community competence. The effect of this doctrine is generally
to prevent individual Member States from entering into bilateral
agreements with third countries in those areas that are subject
to such competence. For the reason given in paragraph 10 above
this proposal may be of limited practical value for the United
Kingdom.
"Article 4 lays down the conditions under which
the Commission may authorise a Member State to pursue negotiations
with a third country. One of these conditions is likely to be
of particular importance. This is the requirement under Article
4(2)(b) that the proposed agreement should be 'of limited
impact on the uniform and consistent application of the Community
rules in place and on the proper functioning of the system established
by those rules'. The Government will seek clarification of the
meaning of 'limited' in this context. If what is meant here is
any impact that is of more than minimal significance then that
would be likely to diminish significantly the utility of this
proposal. On the other hand, if it is intended that only agreements
which would clearly have a significant impact on the acquis
communautaire should be excluded from the proposed procedure,
then the utility of the proposal would be correspondingly increased.
"The Government will also seek a further technical
legal amendment to this proposal. This reflects the fact that
the proposal is drafted on the basis that, in relation to the
United Kingdom, there is external Community competence as regards
applicable law in the area of maintenance. The Government considers
that there is no such competence. This is because the United Kingdom
will not, pursuant to its Protocol on Title IV measures, be participating
in any future Council Decision to ratify the Protocol to the Hague
Maintenance Convention which contains uniform choice of law rules
in this area. The Government will seek an appropriate clarification
in the text on this point."
12.5 The Minister adds that the overall significance
of the proposal for the UK would be limited as existing multilateral
agreements under the Hague Convention obviated the need for specific
bilateral agreements with most states. At the same time, however,
there remained a few states which have chosen not to participate
in the Hague Convention programme. In this regard the present
proposal might help the UK to establish more satisfactory bilateral
arrangements in the family law area than might be possible under
harmonised Community rules.
12.6 When we originally looked at this proposal we
shared the Government's broad support for the proposal but expressed
some concern about the imprecise description of some of the conditions
attached to the exercise of Member State competence in this area.
We asked the Minister to seek an appropriate clarification of
the meaning of "limited" in Art 4(2)(b) which seeks
to ensure compatibility of any bilateral agreement with
the functioning of the intra-EU and EEA conflict of laws rules.
We also asked the Minister to seek clarification of the present
extent of the Community's external competence in the field of
maintenance payments, at least regarding the United Kingdom.
The Minister's Letter
12.7 The Minister has now replied and in his letter
of 18 March 2009, which covers both this and a related proposal
(5147/09 COM(08) 893), writes as follows:
"I am writing to respond to the points made
in the Committee's report on the above proposals, to update you
on progress on them and to inform you of the possible next steps.
Negotiations on the proposals are moving quickly, and the Presidency
is planning to bring them forward for political agreement as early
as the next JHA Council meeting on 7-8 April. As such, I am also
seeking your agreement to release them from formal scrutiny.
"You are aware of the content of these proposals
and the Government's position on them from earlier correspondence
and the Explanatory Memoranda. In short, both proposals seek to
establish a mechanism whereby Member States could enter into agreements
with third (i.e. non-EU) countries on certain matters where there
is external Community competence but no existing or foreseen Community
level agreement with the country in question. It seeks to provide
a system which allows the Commission to oversee any such agreements
to ensure that these do not disrupt the proper functioning of
established Community law (the acquis Communautaire). There are
two proposals, one for certain civil law matters and one for family
law matters, each reflecting the different Treaty bases and procedures
applicable. As each proposal essentially establishes the same
mechanism, I propose to consider these as a pair for the purposes
of this letter so the comments below apply to both proposals unless
stated specifically otherwise.
"The Government is broadly supportive of the
principle underlying these proposals since they offer the prospect
of injecting some flexibility into the application of the doctrine
of external competence, which has become potentially more restrictive
as the Community has legislated in more areas of civil and family
law. I have noted that the Committee broadly supports that view.
The proposals are largely uncontroversial and do not give rise
to any issues of major concern. Our main point has been to ensure
the proposals deliver the aim of providing legal certainty and
being of practical use to the Member States whilst ensuring that
the acquis is suitably protected.
"There have been several Working Group meetings
of officials to discuss the texts. The most recent, on 9/10 March,
produced new Presidency texts and there has been a brief first
reading of these. I enclose copies of those texts. Overall good
progress was made on all the UK's points, most notably the concern
we had about the wide discretion allowed to the Commission to
determine the outcome of the process has more or less been resolved.
You will see that the conditions under which the Commission must
determine a request are now clearer (see Article 4), including
an amendment to the earlier provision which gave rise to some
concern, which was also noted and shared by the Committee in its
report, about its ambiguity and how it might be applied, namely
it provided that even only a 'limited' impact on Community law
could provide a basis for the Commission to decline to authorise.
It has now been clarified that the agreement would have to 'undermine'
the proper functioning of Community law.
"Your Committee supported, as does the Government,
an extension of the scope of the proposal dealing with choice
law issues to cover the recognition and enforcement of judgments
in civil and commercial matters. At the last meeting of the Working
Group in Brussels our delegation urged such an extension in order
to ensure that the proposal would be of practical utility for
the United Kingdom. This reflected the many agreements of this
kind which we have with Commonwealth countries. Unfortunately
the Commission was strongly opposed to an extension of this kind.
The basis of the reasoning behind this position was not entirely
clear. It appears not to be based on technical legal objections
but on broader political considerations relating to the importance
of the Brussels I Regulation. Equally unfortunate was the lack
of any general support for the UK's position on this issue among
the other Member States. Although we will continue to advocate
such an extension of scope, in particular in the European Parliament,
it must now be unlikely that it will be included within the finally
agreed instruments.
"Your Committee noted, and shared, the Government's
concern that the proposal concerning family matters had included
applicable law in the area of maintenance payments. We consider
there can be no external Community competence for this as regards
the UK since we will not participate in any Community decision
to ratify the Hague Protocol of such rules. The Committee urged
that we seek clarification on this point. I am pleased to report
that we are assured this will be made absolutely clear in the
final text.
"Overall, whilst I regret that it now looks
unlikely that the proposal will be extended in scope to make it
of use to the UK I consider that neither proposal contains anything
objectionable. The remaining points are minor and should be successfully
negotiated. As such, we remain supportive of the principle of
seeking flexibility in the application of the external competence
doctrine. I would hope that with the experience of the use of
this limited proposal, if that is how it emerges, the Commission
might be more persuaded (and other Member States perhaps more
determined) to extend the scope at the formal review stage, anticipated
for 5 years after adoption.
"Your Committee asked whether the Government
intended to opt in to the proposal/s under our Title IV Protocol.
The Government is minded to opt in to both proposals, though a
decision on this has not yet been taken. We are due to declare
our position on that by 16 April, though if it comes before Council
prior to then we would hope to be able to make our position clear
then. I note that you have not previously objected to this course
of action and infer from your general comments that your Committee
would agree with that.
"As I noted above, it seems probable that the
Czech Presidency will seek political agreement on these proposals
from the JHA Council on 6/7 April. In the light of this tight
timescale I would be grateful if your Committee would clear them
from scrutiny in time for that meeting. In view of the improbability
that the recognition and enforcement of judgments in civil and
commercial matters will be brought within scope these proposals
are unlikely to be of much practical utility for the UK. On the
other hand the detailed terms of the procedure envisaged under
these proposals have certainly been improved in various ways and
should provide a reasonably satisfactory precedent in the event
that a decision is taken in later years to extend scope in a way
which could be useful for us."
Conclusion
12.8 We thank the Minister for his detailed reply.
We welcome the changes to the original text of the proposal, in
particular the amendment to the conditions attached to the exercise
of Member States' competence in this area, which further limits
the Commission's power not to authorise Member States to enter
into bilateral agreements.
12.9 We also thank the Minister for his assurance
that the final text of the proposal will make clear that applicable
law rules for maintenance payments do not apply to the United
Kingdom.
12.10 On the understanding that the final text
will contain the promised safeguards which reflect these amendments
and the Minister's assurances, we are happy to clear the proposal
from scrutiny and support the Government's intention to "opt
in" to this proposal on the grounds that it limits rather
than extends the Community's exclusive external competence in
matrimonial matters.
12.11 We welcome the Government's "opt in",
in part because it also clarifies that the United Kingdom regards
the conclusion of bilateral agreements covering applicable law
in matrimonial matters as falling within the "opt in"
Protocol arrangements and that UK participation in purely intra-EU
measures in the field does not deprive the Government of its separate
'opt in' in relation to external agreements in matrimonial matters.
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