10 Accession by Austria and Malta
to the Hague Services Convention
| (35038)
10748/12
COM(13) 338
| Draft Council Decision authorising Austria and Malta to accede to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention) in the interest of the European Union
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| Legal base | Articles 81(2) and 218(6)(a) TFEU; QMV; consent
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| Document originated | 6 June 2013
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| Deposited in Parliament | 13 June 2013
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| Department | Justice
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| Basis of consideration | EM of 25 June 2013
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| Previous Committee Report | None
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| Discussion in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested
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The document
10.1 The Hague Service Convention provides a mechanism for
allowing the formal transmission of judicial or extrajudicial
documents in civil and commercial matters from one Contracting
State to the Convention to another, for service in the latter
State. Each Contracting State has a Central Authority which arranges
for the document to be served, or serves it itself. Having such
rules improves legal certainty of service and thereby ensures
that relevant legal documents are brought to the attention of
relevant parties in sufficient time to allow them (if necessary)
to defend themselves.
10.2 The Commission proposal asserts the importance
of the accession of Austria and Malta to this Convention. The
policy of the EU has also been to encourage non-EU Member States
to accede, to widen the operation of this faster and simpler way
of effecting the service of documents. In total, there are 67
Contracting States out of a membership of 75 States of the Hague
Conference.
10.3 The Commission claims "exclusive external
competence" for the EU to be able to negotiate on behalf
of all EU Member States on the issue of Austria and Malta's accession
to this Convention. In other words, the Commission is asserting
that Austria and Malta are not free to enter into an agreement
with the Hague Conference to accede to this Convention on their
own; they must seek authorisation from the EU to do so. This is
because the Convention affects internal EU rules on the service
of documents in civil or commercial proceedings in the form of
Regulation 1393/2007, the EU Service Regulation.
10.4 Recital 6 of the proposal states that, as
the UK and Ireland are bound by the terms of the EU Service Regulation,
they "are therefore taking part in the adoption of this Decision".
10.5 In terms of negotiating timetable, the first
meeting of the relevant Council working group is likely to take
place in September 2013. At this stage it is not known how long
the process towards agreement will take, though the draft Decision
provides for Austria and Malta to deposit their instruments of
accession "if possible, before 31 December 2014". The
draft Decision also provides that Austria and Malta shall inform
the Council and the Commission of the prospective date of conclusion
of their accession procedures "before 1 July 2014".
The Government's view
10.6 In a short Explanatory Memorandum of 25
June 2013 the Secretary of State for Justice (Chris Grayling)
says that the Government can support the accession of Austria
and Malta to the Hague Service Convention — the effects
on the UK will be minimal.
10.7 However, it is not convinced that the Commission
has yet made a convincing argument that there is exclusive external
competence in this area. Notwithstanding the similarities between
the Hague Convention and the EU Service Regulation, it is not
immediately apparent that the application of the Hague Convention
by these Member States will have an effect on the working of the
Regulation. The Government will explore this issue further during
the negotiations.
10.8 In addition, notwithstanding recital 6 of
the draft Decision, the Government's position is that the Title
V opt in applies to this proposal and in due course it will choose
whether to opt in. The eight-week deadline before which the Government
will not finalise its decision expires on 6 August. In deciding
whether to opt in the Government will consider the effects of
the proposal on the UK and the best way to maximise the UK's influence
during the negotiations on the question of exclusive competence.
Conclusion
10.9 We thank the Minister for his Explanatory
Memorandum.
10.10 We think the draft Council Decision
falls within the scope of Protocol 21, the opt-in Protocol, because
it has a Title V legal base —Article 81(2) TFEU— and
is therefore a measure which will be "adopted pursuant to
that Title" according to Article 2 of the opt-in Protocol.
As a consequence, the UK and Ireland should have three months
in which to decide whether to opt in, and enhanced Parliamentary
scrutiny procedures should apply.
10.11 We note, however, that recital 6 provides
to the contrary — that because the UK and Ireland have opted
into the relevant internal EU legislation[22]
on which external EU competence is based it is automatically bound
by this Decision. Yet no provision to this effect is made in the
opt-in Protocol.
10.12 The Government shares our view that
the opt-in Protocol applies, but it is unclear from the Minister's
comments how forcefully it proposes to defend it. Although in
these circumstances whether the UK opts in or out of this Decision
is inconsequential, the point of principle and the precedent set
seem far from inconsequential. So we ask the Minister to write
back in time for our meeting on 17 July, to explain in greater
detail how the Government intends to counter the legal reasoning
that underpins recital 6, including whether it will consider challenging
the Decision before the Court of Justice if it is adopted without
a replacement recital being incorporated to reflect the application
of the opt-in Protocol. The Government has been vigilant in asserting
its opt-in rights in the absence of a Title V legal base, so we
presume it will do so in the presence of a Title V legal base.
10.13 In the same letter we ask the Minister
to provide further detail on why the Commission's claim in the
second recital that the Convention affects the EU Service
Regulation, which on its face is consistent with the case law
of the Court of Justice on exclusive external competence, is not
in substance justified.
10.14 In the meantime the draft Decision remains
under scrutiny.
22 See paragraph 10.3 above. Back
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