10 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 21 April 2009
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| Previous Committee Report | (a) HC 19-xii (2008-09), chapter 12 (25 March 2009)
(b) HC 19-xiii (2008-09), chapter 13 (1 April 2009)
HC 19-vii (2008-09), chapter 5 (11 February 2009)
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| To be discussed in Council | June 2009 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)
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Background
10.1 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
10.2 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.
10.3 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 off 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 Members 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.'
10.4 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 cleared both documents from scrutiny in March
and April of this year. We asked the Minister to keep us informed
of any important developments during the final stage of negotiations.
The Minister's Letter
10.5 The Minister (Lord Bach) has now written with further
information and in his letter of 21 April 2009 informs us that,
as previously advised, the Government notified the Council of
its decision to opt in to both proposals on 8 April. The Minister
further comments as follows:
"EU PROPOSALS TO FACILITATE MEMBER STATE BILATERALS WITH
THIRD COUNTRES
a) Proposal for a 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.
b) Proposal for a Regulation of the European Parliament
and of the Council 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.
"I am writing in response to the Committee's reports of 25
March and 1 April 2009. I am grateful that you have cleared these
proposals from scrutiny. I thought it appropriate to update you
on the progress of negotiations. I therefore enclose the latest
versions of the texts of these proposals which were agreed by
COREPER on 7 April 2009. These will now form the basis for negotiations
with the European Parliament. This will be with a view to securing
a first reading agreement between the Council and the European
Parliament. There is a good prospect that there will be such an
agreement and that, as envisaged by the Czech Presidency, both
proposals will be adopted at the June meeting of the JHA Council.
"The Government notified the President of the Council of
the United Kingdom's opt in to both these proposals on 8th April.
You will note from Recital 17 of the civil law proposal and Recital
16 of the family law proposal have now been made explicit to reflect
the fact that the UK's Protocol on Title IV measures applies to
both these measures.
"Turning to the points raised in your Committee's reports,
I believe you will welcome the final combined result of Articles
4, 5 and 7 which should ensure that, where the Commission has
authorised a Member State to enter into negotiations on a bilateral
agreement with a third country, it will also be required to authorise
the conclusion of that agreement, provided that the conditions
attached to the original authorisation have been fulfilled. This
is a significant safeguard for the Member States and should generally
avoid the possibility of the unfortunate outcome whereby an initial
authorisation is given by the Commission only for the subsequent
authorisation on conclusion to be refused.
"I believe you will also welcome the clarification in Article
1(1) (second paragraph) that nothing in the proposal will affect
the respective competencies of the Community and the Member States.
This should ensure that nothing in either proposal will result
in any extension of the Community's external competence.
"Article 1(2) of the proposal on family law restricts the
scope of that Regulation not only to matters falling within the
scope of Regulation 2201/2003 and Regulation 4/2009, but also
to matters falling within the Community's exclusive competence.
The effect of this is to make it clear that, as far as the UK
is concerned, the Regulation does not apply to bilateral agreements
covering choice of law in the area of maintenance. This is because
there is not, and will not be, any such Community competence in
that area in relation to the UK. This clarification is welcome."
Conclusion
10.6 We thank the Minister for his detailed update. We
welcome the amendments to the original text of the proposal. We
ask the Minister to keep us informed of any further important
developments as these proposals follow their course through the
legislative process.
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