3 Bilateral Agreements
| (30333)
5146/09
COM(08) 894
| Draft Council Regulation for the Negotiation and Conclusion of Bilateral Agreements Between Member States and Third Countries concerning rules governing 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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| Document originated | 19 December 2008
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| Deposited in Parliament | 14 January 2009
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| Department | Ministry of Justice
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| Basis of consideration | EM of 22 January 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
3.1 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, 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 the 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
3.2 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.
3.3 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 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
3.4 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."
3.5 The Minister also addresses the likely impact
of the proposal on United Kingdom law, which he evaluates as follows:
"This proposal would have no direct impact on
UK law.
"In terms of the proposal's longer term consequential
impact on UK law, there are the following important international
agreements in this field:
- the 1970 Hague Convention on the recognition
of divorces and legal separations;
- the 1996 Hague Convention on jurisdiction, applicable
law, recognition, enforcement and cooperation in respect of parental
responsibility and measures for the protection of children; and
- the 2007 Hague Convention on the international
recovery of child support and other forms of family maintenance.
"In overall terms these multilateral agreements
are satisfactory. In the light of this it is not expected that
in general there will be a significant need in future for the
UK to enter into bilateral agreements with third countries in
the areas covered by these conventions. It should generally be
for third countries to become parties to these conventions. In
the light of this it is not expected that this proposal will be
likely to have a significant future impact on the law in the United
Kingdom. However there may be some third countries which are not
members of the Hague Conference and which are not willing to become
parties to the above conventions. In relation to these countries
there may be a national interest in the UK concluding bilateral
agreements in the area of family law. In these circumstances this
proposal may be of value."
Conclusion
3.6 We thank the Minister for his detailed comments.
We broadly welcome the underlying aim of the proposal, which would
ensure Member States may continue to conclude certain bilateral
agreements governing applicable law, jurisdiction and enforcement
of maintenance obligations.
3.7 We note the Minister's view that there is
at present no external Community competence regarding applicable
law in the area of maintenance payments, at least regarding the
United Kingdom. We encourage the Minister to seek clarification
of this point and, if his view is confirmed, to secure appropriate
amendments to the proposal.
3.8 We share the Minister's concern about the
vague description of some of the conditions attached to the exercise
of Member State competence in this area. We in particular urge
the Government 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 shall hold the document under
scrutiny until the publication of a new revised proposal or until
we have had further word from the Minister.
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