26 Accession by Austria and Malta to
the Hague Service Convention
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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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| Department | Justice
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| Basis of consideration | Minister's letter of 14 August 2013
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| Previous Committee Report | HC 83-ix (2013-14), chapter 10 (10 July 2013)
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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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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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