4 Hague Protocol on the Law Applicable
to Maintenance Obligations
| (30473)
6996/09
+ ADD 1
COM(09) 81
| Draft Council Decision on the conclusion by the European Community of the Protocol on the Law Applicable to Maintenance Obligations.
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| Legal base | Articles 61(c), 300(2) and 300(3) EC Treaty
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| Document originated | 23 February 2009
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| Deposited in Parliament | 6 March 2009
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| Department | Ministry of Justice
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| Basis of consideration | EM of 18 March 2009
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| Previous Committee Report | None
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| To be discussed in Council | No date fixed
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| Committee's assessment | Legally and politically important.
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| Committee's decision | Not cleared. Further information requested.
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Background
4.1 The Hague Protocol on the Law Applicable to Maintenance Obligations
was concluded in November 2007. It establishes a basic rule that
the applicable law of maintenance claims would be that of the
habitual residence of the maintenance creditor. Similar rules
were originally included in the proposed EU Regulation on Maintenance.
However, due to UK opposition the rules were removed from the
Regulation and a compromise was agreed which allowed Member States
to apply the rules in accordance with the Hague Protocol.
The Document
4.2 Documents 6996/09 and 6996/09 ADD1 set out a proposal for
a Council Decision for the European Community to conclude the
Hague Protocol on the Law Applicable to Maintenance Obligations.
The latter is annexed to and forms the substance of the Council
Decision.
4.3 Article 24 of the Protocol allows the Community
to sign, accept, approve or accede to the Protocol. Document 6996/09
includes a number of declarations to be made by the European Community
to approve the Protocol, including that the Community exercises
competence over the matters governed by the Protocol and that
Member States shall be bound by it by virtue of its conclusion
by the Community; that the Protocol will apply provisionally from
18 June 2011, the date of application of the related relevant
Council Regulation, if it has not entered into force on that date
(in accordance with Article 300(2) of the Treaty establishing
the European Community); and that in the Community it shall also
apply to maintenance claimed in the Member States relating to
a period prior to the entry into force or provisional application
of the Protocol in situations where proceedings are instituted,
court settlements approved or concluded and authentic instruments
are established after the date of application of the Regulation.
The latter declaration ensures consistency with the Regulation.
4.4 The Government made clear during the negotiations
of the Regulation that it did not intend to apply the Protocol.
Therefore Recital 9 and Article 2 of the proposed Council Decision
anticipate the fact that the United Kingdom will not be opting
in to this proposal.
The Government's view
4.5 The Government's initial opposition to applicable
law rules in maintenance cases has not changed and in his Explanatory
Memorandum of 18 March 2009 the Parliamentary Under-Secretary
of State at the Ministry of Justice (Lord Bach) briefly summarises
the background to the Government's decision not to participate.
The Memorandum focuses on the one outstanding issue for the United
Kingdom as a non-participating country:
"There is very little application of foreign
law in family matters within the UK, and in maintenance cases
in particular the expense of proving the content of that law would
be disproportionate to the low value of the vast majority of maintenance
claims. For this reason, during the negotiations of Regulation
(EC) No 4/2009 on matters relating to maintenance obligations,
the United Kingdom made it clear that it did not intend to use
applicable law rules in maintenance cases. We agreed to participate
in the adopted Regulation on the basis of the compromise which
removed the applicable law rules from the EU instrument and allowed
accession to the Hague Protocol by the EU provided we would not
be obliged to join in that accession. The Scrutiny Committees
are aware of this position. Therefore the Government does not
intend to participate in this proposal."
4.6 However, an issue of competence arises in this
proposal. Recital 5 states that "The Community has exclusive
competence over all matters governed by the Protocol". The
Government does not accept that this is the position in relation
to the UK. Regulation (EC) No 4/2009 presents an unusual situation
in relation to Community competence. By Article 15 of the Regulation,
"The law applicable to maintenance obligations shall be determined
in accordance with the Hague Protocol of 23 November 2007 on the
law applicable to maintenance obligations…in the Member States
bound by that instrument". The external competence is created
by a combination of the Community Decision to ratify the
Protocol and the Regulation — not the Regulation alone.
The Regulation expressly provides the possibility that not all
Member States will become bound by the Protocol. Therefore the
Community's exclusive external competence relating to applicable
law extends only to those Member States participating in the Decision.
The Government will seek the addition of a qualification to recital
5 to reflect this position. It is clear from Article 2 of this
proposal that the Community only intends to claim such exclusive
external competence in relation to all Member States except the
UK and Denmark. The negotiations of the Regulation were predicated
on the assumption that the UK would not participate in a Decision
to ratify the Protocol.
Conclusion
4.7 We thank the Minister for his helpful and
reassuring comments. We are content in particular that the Government
has affirmed its original decision not to 'opt in' to the proposal,
as we remain of the view that the application of foreign law would
result in additional and unjustified costs and contribute to undermining
England's current position as the premier forum of choice for
litigants in contested divorce proceedings, in particular if the
applicable law rules in maintenance cases were at some stage to
be extended to matrimonial cases generally and the UK might be
tempted to opt in.
4.8 We also share the Minister's misgivings about
the assertion of exclusive Community competence in Recital 5 of
the proposed Decision to ratify the Protocol, as this might create
an unwelcome precedent in analogous situations in the future even
where not all Member States have decided to participate in the
relevant internal legislation. We urge the Minister to secure
an appropriate amendment to the proposed text, which would delete
the offending Recital 5 or replace it with an alternative provision
confined to the assertion of shared Community competence. We shall
keep the document under scrutiny until we have received word form
the Minister, hopefully with good news about the Government's
efforts to secure an amendment on this important point.
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