28. JURISDICTION AND THE RECOGNITION
AND ENFORCEMENT OF JUDGEMENTS IN MATRIMONIAL MATTERS AND IN MATTERS
OF PARENTAL RESPONSIBILITY FOR JOINT CHILDREN
Letter from Lord Tordoff, Chairman of
the Committee, to Keith Vaz MP, Parliamentary Secretary, Lord
Chancellor's Department
Sub-Committee E (Law and Institutions) considered
the draft Regulation at its meeting on 10 November. There are
three matters on which the Committee would welcome your views.
The Commission has said that the subject matter
of the Regulation, which is largely a replica of the Convention
on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial
Matters (Brussels II), is "now within the ambit of Article
65 of the Treaty". The legal base proposed is Article 61(c).
You appear to doubt the Commission's reasoning. The Committee
shares your concern. It would be helpful if you could give the
Committee a fuller explanation of the Government's position as
regards the appropriate legal base for the Regulation. In the
Committee's view no Regulation should be adopted in the absence
of a clear and secure legal base.
Secondly, the conversion of the Convention into
a Regulation made under the EC Treaty raises a question relating
to the position of the Explanatory Report and the Declarations
made at the time of signing the Convention. What will be the position
of the Explanatory Report if the Regulation is adopted? Are there
any matters in the Report which you believe should be transferred
into the recitals and/or articles of the Regulation?
The Commission proposes that the Declarations
should, if Member States concerned wish to press them, be reproduced
as Council Minutes statements. The Committee would be grateful
if you could explain what status and effect a Council Minutes
statement would have, as compared to a Declaration made in relation
to a Treaty. Does the Government consider that it is, in principle,
sufficient that Declarations are reproduced in Council Minutes
statements?
Finally, the Committee would like to return
to the question of the role of the Court of Justice in relation
to the matters, in particular parental responsibility orders,
the subject of the Convention and now of the proposed Regulation.
You will recall the position taken by the Committee in its Report
on the Convention (5th Report, 1997-98, at paras 67 and 68). The
Committee remains concerned at the possibility of delays before
the Court of Justice and recalls that at the time of signing the
Convention a declaration was annexed to the Council Minutes to
the effect that consideration should be given to ways of reducing
the length of proceedings before the Court. Notwithstanding the
limited jurisdiction which the Court would be given in relation
to the Regulation by Article 68 of the EC Treaty, is there not
still a case for looking to see whether the length of proceedings
can be reduced? In this context the Committee notes that the Court
has recently tabled proposed amendments to its Rules of Procedure.
The Committee would welcome your reactions.
The Committee looks forward to receiving the
information requested above. In the meantime the document is retained
under scrutiny.
11 November 1999
Letter from David Lock MP, Parliamentary
Secretary Lord Chancellor's Department, to Lord Tordoff, Chairman
of the Committee
Your letter of 11 November has been passed to
me for reply because I have taken over Keith Vaz's responsibility
for international matters at the Lord Chancellor's Department.
The first issue you raise concerns the treaty
base proposed for this draft Regulation. When the Government notified
the Finnish Presidency last July that the United Kingdom intended
to opt-in to the negotiations on this draft Regulation, it expressed
doubts as to whether this proposal properly fell within the scope
of Article 65 of the EC Treaty. It was, in particular, felt to
be uncertain whether the subject matter of the Regulation satisfied
one of the requirements of this provision, namely that it was
"necessary for the proper functioning of the internal market".
Since then legal advice has been sought on this
issue from Professor Derrick Wyatt QC. His view is that, on the
basis of the Court of Justice's jurisprudence relating to the
free movement of persons, the harmonisation envisaged under the
proposed Regulation could plausibly be said to contribute to the
free movement of persons and thus to affect the proper functioning
of the internal market. He further argues that such harmonisation
is likely to be accepted by the Court as "necessary"
for the proper functioning of the internal market on the basis
that the Court has traditionally been reluctant to interfere in
the wide discretion exercisable by the Council of Ministers in
deciding whether a condition of this kind has been satisfied.
In his view, a challenge to the adoption of the proposal on the
ground that it was not necessary for the proper functioning of
the internal market would fail.
This Opinion has been considered by the UK Law
Officers who agree with it. It has also been considered by me
and my colleague, Jim Wallace, the Scottish Minister for Justice,
and we also agree that in the light of it a challenge to the proposal
on the ground of an inadequate treaty base would be likely to
fail and accordingly should not be made.
One aspect of the treaty base issue still remains
to be settled. This concerns the scope of the draft Regulation
which, as presently drafted, would apply to non-EU nationals.
The Swedish delegation in the Council Working Group has questioned
whether the broad scope of the instrument properly falls within
Article 65 and whether, in particular, rules governing divorce
jurisdiction in relation to non-EU nationals such as two American
nationals properly satisfy the condition of necessity for the
proper functioning of the internal market. I shall be giving further
consideration to this issue in the light of further advice which
has been sought from Professor Wyatt. The issue will also be considered
in more detail by the Working Group in Brussels next year, and
the Council Legal Service will produce an Opinion on it. I shall
keep your Committee informed of developments.
The second matter you raise concerns the position
of the Explanatory Report which was attached to the 1998 Convention.
This valuable report was drafted by Professor Borras of the University
of Barcelona and we are keen to ensure that it remains available
as a useful guide to the interception of the Regulation. We are
not pressing for any particular aspect of it to be included in
the text of the Regulation or in the recitals. However the United
Kingdom delegation recently proposed that an additional recital
be added to the Regulation; this would simply refer to the report
which would thereby be drawn to the attention of the users of
the Regulation, but would not be a binding authority on the meaning
of the Regulation. This proposal will be discussed by the Brussels
Working Group next year. Once again, I shall keep your Committee
informed of developments.
The third matter you raise concerns the proposal
from the Commission that the declarations under the earlier Convention
should, if the Member States concerned wish to press them, be
reproduced as Council minute statements. It seems to be generally
agreed that such statements are of little or no legal effect.
Of the two Member States concerned, Ireland has indicated that
it does not seek any such statement. Italy has proposed, and it
has been agreed, that instead of a minute statement an amendment
should be made to the text of the Regulation. This would reflect
the terms of its earlier declaration, namely that it reserves
the right, in respect of judgments by Portuguese ecclesiastical
courts, to adopt the procedures and carry out the checks provided
for in its own legal system in respect of similar judgments by
ecclesiastical courts, on the basis of the agreements it has concluded
with the Holy See. Accordingly it has been agreed that Article
42 (Treaties with the Holy See) should be amended to include an
appropriate provision.
Finally, you have raised the question of the
role of the Court of Justice in relation to the subject matter
of the Regulation. Your Committee remains concerned about the
possibility of delays by the Court in disposing of references
made to it from national courts on the interpretation of the Regulation.
This concern reflects the fact that long delays are particularly
undesirable in the context of family proceedings. Your letter
correctly points out that the Court's jurisdiction is now governed
by Article 68 of the EC Treaty. Under this provision references
in respect of Title IV measures can only be made "on a case
pending before a court or tribunal of a Member State against whose
decisions there is no judicial remedy under national laws".
For the United Kingdom, this will mean, in practice, that references
will only be possible from the House of Lords. In view of this
restrictive provision there are unlikely to be a significant number
of references to the Court. As far as expediting the handling
of such cases in the Court is concerned, the Court has made it
clear that, although it is prepared to give priority to particular
references in this area on a case by case basis, it is not prepared
to do so in advance in respect of all such references. Whilst
I accept that this is not an entirely satisfactory outcome, I
would draw the Committee's attention to Article 68(3) under which
the Council, the Commission or a Member State may request the
Court to give rulings on the interpretation of Title IV measures.
This will facilitate the making of references in situations where
significant problems have arisen in the application of the Regulation.
In situations of this kind references will not arise directly
out of private litigation and will not therefore cause intolerable
delays to the families concerned.
Your Committee has also noted that the Court
has recently tabled proposed amendments to its rules of Procedure.
The Government generally supports these proposals, in particular
the proposal for an accelerated procedure which would have clear
benefits for Brussels II cases. Other proposals are not so directly
relevant in the present context.
30 December 1999
Letter from Lord Tordoff, Chairman of
the Committee, to David Lock MP, Parliamentary Secretary, Lord
Chancellor's Department
Thank you for your letter of 30 December which
Sub-Committee E (Law and Institutions) considered at its meeting
on 19 January. The Committee is grateful for the detailed explanations
given and for your undertaking to keep the Committee informed
of developments.
The Committee decided to clear the document
from scrutiny.
20 January 2000
Letter from David Lock MP, Parliamentary
Secretary, Lord Chancellor's Department, to Lord Tordoff, Chairman
of the Committee
Thank you for your letter of 20 January in which
you notified me of your Committee's decision to clear this proposal
from scrutiny.
I am writing to keep you informed about recent
developments. The first concerns one aspect of the treaty base
issue, namely the application of the draft Regulation to non-EU
nationals and whether this satisfies the requirement in Article
65 of the EC Treaty that measures made thereunder are necessary
for the proper functioning of the internal market.
Professor Wyatt QC has advised on this issue
and has concluded that the present scope of the Regulation might,
in principle, be ultra vires Article 65 to the extent that
it covers non-nationals of Member States who are not also members
of the families of nationals of Member States. This view has not
been supported by the Council Legal Service which rested its opposite
conclusion on the general framework and objectives of Title IV
of the EC Treaty which aims at the progressive establishment of
an area of freedom, security and justice through policies related
to the free movement of persons, including third country nationals.
The Council Legal Service found it difficult to conceive a coherent,
uniform and not unduly complicated body of rules governing civil
jurisdiction and the recognition and enforcement of judgments
which would be based primarily on the nationality of the parties.
This has not been an easy issue to resolve,
no view of the matter appears to be entirely conclusive. However,
for the following reasons the Government has decided to accept
the current scope of the Regulation: first, because, as a matter
of policy, we would not wish to exclude nationals from third countries
from the scope of the Regulation, indeed we agreed to their inclusion
within the 1998 Convention, and secondly, that in view of the
wide margin of appreciation vested in the Council of Ministers
the prospects for a successful challenge on the point in the Court
of Justice are not particularly encouraging. These difficulties,
together with the likely lack of any significant support on the
issue from other Member States in the Council, have led the Government
to conclude that this issue should not be pursued further.
The second concern raised by your Committee
related to the future position under the Regulation of the Explanatory
Report which was attached to the 1998 Convention. It was unfortunately
not possible to get agreement on the inclusion of a new recital
which would specifically refer to this report. However, there
has been agreement that these should be a clear reference to it
in a footnote to one of the recitals; this would include the relevant
reference to it in the Official Journal. This should be sufficient
to enable users of the Regulation to know of its existence, and
where to find it, and therefore to assist in the interpretation
of the Regulation.
7 March 2000
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