16 Bilateral Agreements
| (a)
(30333)
5146/09
COM(08) 894
(b)
(30334)
5147/09
COM(08) 893
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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 decisions in matrimonial matters, parental responsibility and maintenance obligations, and applicable law in matters relating to maintenance obligations.
Draft Regulation establishing a procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning sectoral matters and covering applicable law in contractual and non-contractual 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 22 May 09
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| Previous Committee Report | (a) HC 19-xii (2008-09), chapter 12 (25 March 2009)
(b) HC 19-vii (2008-09), chapter 5 (11 February 2009); HC 19-xiii (2008-09), chapter 13 (1 April 2009), HC 19-xvii (2008-09), chapter 10 (13 May 2009).
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| To be discussed in Council | The next practicable JHA Council
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared on 25 March 2009 (a) and 1 April 2009 (b); further information now received.
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Background
16.1 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 established 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
16.2 The purpose of these proposals is to establish a procedure
to enable Member States in future to negotiate and conclude bilateral
agreements with third countries in certain areas of family law
with a cross-border dimension (document (a)) and relating to the
choice of law concerning non-contractual and contractual obligations
(document (b)). Subject to the satisfaction of certain conditions,
this procedure would enable the Commission to authorise such negotiations
and their conclusion.
16.3 Both subject areas have recently been covered
by Community legislation, respectively EC Regulation No. 864/2007
("Rome II") and EC Regulation No. 593/2008 ("Rome
I") regarding applicable law concerning non-contractual and
contractual obligations, and, in the field of family law, EC Regulation
2201/2003 concerning jurisdiction and the recognition and enforcement
of judgments in matrimonial matters and matters of parental responsibility
as well as EC Regulation 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 is, in general terms, to establish far-reaching external
Community competence in these areas, which may be exclusive at
least in some areas. In principle this means that Member States
may be prevented from entering into bilateral agreements which
fall within the scope of this legislation. Particular concerns
were also raised by some Member States during the negotiations
on Rome II that the consequent extension of external competence
in this area might prove too restrictive in some circumstances,
for example in the context of cross-border infrastructure projects
involving third countries, such as airports or tunnels, where
it might be desirable to put in place special choice of law regimes
which departed from the terms of the relevant Community legislation.
The proposed regulations would limit the scope of the Community's
exclusive competence and ensure that Member States may continue
to negotiate bilateral agreements with third countries in areas
of law where the Community has in recent years largely 'occupied
the legislative field.'
16.4 When we originally looked at these proposals
we broadly shared the Government's general support for the proposed
measures but expressed some concern about the imprecise description
of the Commission's powers to authorise Member States to exercise
their competence to conclude bilateral agreements. The Government
subsequently secured amendments of the relevant provisions, and
on this basis we expressed support for the Government's intention
to 'opt in' to the proposed measures. We cleared both documents
from scrutiny in March and April of this year. On 21 April the
Minister (Lord Bach) informed us that the Government had officially
notified the Council of its decision to 'opt in'. We asked the
Minister to keep us informed of any important developments during
the very final stage of negotiations.
The Minister's Letter
16.5 The Minister has now written with further information
and in his letter of 22 May 2009 updates us as follows:
"I wrote to you on 21 April 2009 about these
draft Regulations. I am writing again to inform your Committee
about the final outcome which was agreed at COREPER today.
"There is one issue which I wanted to draw to
your attention. This concerns the Regulation which deals with
choice of law issues and in particular the provision which provides
for the Commission's review of the operation of that instrument
(Article 10). The previous version of that provision provided
that the possibility of extending the scope of that instrument
to cover the recognition and enforcement of judgments falling
within the scope of the Brussels I Regulation (44/2001) should
be considered as part of the Commission's assessment of the operation
of the new Regulation.
"This was not an ideal outcome, but at least
it would have ensured that the issue of such an extension would
have remained firmly on the agenda for the future. Unfortunately
as a result of opposition from the European Commission the current
review provision contains no specific reference to such an extension.
In place of such a reference are the attached draft statements
to be made by the Council and the Commission. In these statements
the Council invites the Commission to consider the possibility
of such an extension; the Commission agrees to take note of this
invitation to examine it carefully in the review process. This
is not a strong form of words and must, I concede, represent a
poor outcome for the UK on this issue. Nevertheless I have with
some reluctance concluded that at this time it is not realistically
possible to make further progress on this point. It must be hoped
that the Commission's view of the matter in that review will be
more flexible and that the UK's reasonable position will attract
more support than is currently the case…."
16.6 The draft Statement, which is included in the
Minister's letter:
"Draft statements by the Council and the
Commission on Article 10
"The Council invites the Commission to consider
carefully, when preparing its report under Article 10, whether,
in the light of the experience gathered on the application of
the Regulation, the Regulation on its expiry should be replaced
by a new one covering the same subject matters or including also
other matters covered by other Community instruments. In the context
of the report on the application of the Regulation on applicable
law, the Commission should consider, in particular, whether a
possible new Regulation should cover recognition and enforcement
under Regulation (EC) No 44/2001."
"The Commission takes note of this invitation
and will examine it carefully in its report on the application
of the Regulation, without prejudice to its own competences."
Conclusion
16.7 We thank the Minister for his detailed update.
We share the Minister's disappointment at the opposition by the
Commission and other Member States to the extension of the choice
of law proposal (proposal (b)) to matters covered internally by
the Brussels I Regulation. We note the text of the proposed Council
statement in this connection and expect the Government to make
appropriate representations in good time before the bilateral
agreements Regulations are due for review by the Commission.
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