Documents considered by the Committee on 4 September 2013 - European Scrutiny Committee Contents


26 Accession by Austria and Malta to the Hague Service 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

Legal baseArticles 81(2) and 218(6)(a) TFEU; QMV; consent
DepartmentJustice
Basis of considerationMinister's letter of 14 August 2013
Previous Committee ReportHC 83-ix (2013-14), chapter 10 (10 July 2013)
Discussion in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionNot cleared; further information requested

Background

26.1 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.

26.2 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 affecting the service of documents. In total, there are 67 Contracting States out of a membership of 75 States of the Hague Conference.

26.3 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.

26.4 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".

Previous scrutiny

26.5 When we reported on this document on 1 July, we concluded as follows:

    "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.

    "We note, however, that recital 6 provides to the contrary — that because the UK and Ireland have opted into the relevant internal EU legislation[102] 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.

    "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.

    "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.

    "In the meantime the draft Decision remains under scrutiny."

The Minister's letter of 14 August

26.6 On the application of the opt-in Protocol, the Secretary of State for Justice (Chris Grayling) confirms that the Government does not accept the argument of the Commission set out in recital 6.

26.7 In previous negotiations where the Commission has asserted that the UK is bound by a particular Decision because of the opt-in Protocol, the Government has been firm in maintaining this argument. As a result, regardless of whether there is exclusive external competence, wherever a Title V legal base is used, the UK asserts its right to opt into a measure. It will assert that right in the forthcoming negotiations on this proposal, and, if necessary, will put in a formal Minute Statement to record its position when this proposal is be agreed at a JHA Council.

26.8 He says the Government agrees with the Committee's view that, although whether the UK opts into the Decision or not is of no practical consequence, the principle itself is nonetheless important. However, while there might be occasions when it would be in the interests of the UK to test these issues in the ECJ, he believes that in relation to this uncontroversial measure such a course would not be appropriate.

26.9 He reassures the Committee that the Government remains vigilant in asserting its opt-in rights both in the absence and the presence of a Title V legal base.

26.10 As for whether the Convention "affects" the Service Regulation, the Government accepts that, because of the similarities between the EU Service Regulation and the Hague Service Convention, the EU does have external competence in this area. However, it disputes the Commission's assertion that it is exclusive. The Commission appears to make that claim on the basis that the content or scope of the Service Regulation will be affected by the accession of Austria and Malta to the Hague Service Convention. The Government disagrees. It contends that neither the content nor the scope of the Service Regulation will be affected by these Member States' accession, and that "exclusive" competence does not apply. This is an argument it will deploy in the forthcoming negotiations on this Proposal, and he anticipates that it will be supported by other Member States.

26.11 Lastly, the Minister hopes these comments are helpful to the Committee in its consideration of this proposal, and trusts that it will now feel able to release this proposal from scrutiny.

Conclusion

26.12 We thank the Minister for his letter, which has helped our understanding of the Government's argument that the EU's external competence over the Convention is not exclusive for the purposes of Austria and Malta's accession. The result of the negotiations on this issue is likely to have an impact on the scope of future claims by the Commission of exclusive external competence.

26.13 In our view both the assertion of exclusive competence and the dis-application of the rights of the UK under the opt-in Protocol are of significant legal consequence (we do not think that a Minute Statement in the Council will stop the Commission from relying on these arguments again). So, rather than clear the proposal, we keep it under scrutiny pending a final update from the Minister on the outcome of the negotiations.


102   See para 10.3 in our previous report. Back


 
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Prepared 23 September 2013