Select Committee on European Union Tenth Report

CHAPTER 9: Civil Law

Mutual recognition or approximation?

55.  The Hague Programme contains a very ambitious section on civil law. It calls for the mutual recognition programme in civil law to be completed by 2011 and puts forward ideas for action on mutual recognition in the field of family and succession law. It emphasises, however, that the concepts of "marriage" and "family" will not be harmonised. As in the field of criminal law, the question arises as to how far mutual recognition should extend in civil matters and whether mutual recognition can be achieved without a degree of approximation of Member States' laws.

56.  We received detailed comments on the civil law aspects of the Hague Programme from the Law Society. They were in favour of developing the EU mutual recognition agenda, believing that "the completion of the mutual recognition programme and the development of an effective cross-border litigation regime should go a long way to eliminate the problems inherent in cross-border litigation—principally high costs and lengthy and complex procedures". Mutual recognition and enforcement "will significantly enhance the rights of litigants".[97] On approximation, the Law Society stressed that "any proposals for the development of minimum standards for aspects of procedural law or 'standardisation' should be measures that are designed to facilitate mutual recognition rather than those that are designed to harmonise or approximate rules across the board".[98]

57.  The Government supported this view. According to Baroness Ashton, it was clear from the Hague Programme that "mutual recognition is what we do, that we look across to see how we support mutual recognition".[99] Harmonisation of procedural matters may be necessary to enable better mutual recognition.[100] But neither the Government, nor other Member States, would support harmonisation "as a good in itself".[101] This is reassuring. We expect the Government to look most critically at the need for any harmonisation measures that the Commission may propose.

The limits of EU competence

58.  A related issue, which the Committee has examined in detail in its Report on the Rome II Regulation,[102] is the extent to which the Community has competence, under Article 65 TEC, to adopt legislation in the field of civil law. That Article requires a cross-border dimension and also that the legislation is necessary for the proper functioning of the internal market. Baroness Ashton took the view that Article 65 indeed limited Community competence to cross-border cases and that there was no competence beyond cross-border issues, with the exception of matters which would facilitate mutual recognition.[103] This exception is a matter of considerable concern, as our Report on defence rights shows. The draft Rome II Regulation also shows the Commission's temptation to legislate universally. Any EU action in the civil law field under Article 65 of the EC Treaty must respect the conditions set out in that Article. There must be a clearly identifiable and substantial cross-border dimension. The legislation must also be necessary to enable the proper functioning of the internal market.


59.  It may be argued that action in many aspects of civil law, including most of the aspects mentioned in the Hague Programme, are not matters where action at the EU level is most appropriate, but are best left to Member States. We questioned Baroness Ashton on the necessity of EU action in the civil law field, and she justified EU action as providing benefits to EU citizens in their everyday lives.[104] The examples the Minister gave were legislation relating to small claims, maintenance and matrimonial disputes, especially those involving assets.[105] We agree that there are some issues where EU action in civil matters may be beneficial to EU citizens. But it is essential that the benefit that EU action may confer is fully substantiated before any proposals in civil matters are tabled. National parliaments can be expected to examine closely the subsidiarity implications of proposals aiming to harmonise civil law.

Family law

60.  The Hague Programme calls for the development of EU action in family and succession law. The Commission is invited to submit a series of proposals, covering matters such as maintenance, succession, matrimonial property, and divorce, and to propose instruments such as a European certificate of inheritance and a European register of wills. Instruments in this area should be completed by 2011. As mentioned above, the European Council stresses that action will not be based on harmonised concepts of "family" or "marriage". But the Programme then goes on to add that "rules of uniform substantive law should only be introduced as an accompanying measure, whenever necessary to effect mutual recognition of decisions or to improve judicial cooperation in civil matters".

61.  The Law Society expressed concern about this wording. It appeared to the Society that "a broad interpretation of 'necessary to improve judicial co-operation in civil matters' would lead to proposals that impact significantly on the domestic systems of Member States".[106] It believed that, in the light of the significant and deep-rooted differences in the laws and procedures of Member States, any approximation of substantive family law was premature.[107] But at the same time it recognised the existence of "forum shopping" in the family law field and the need to solve the issue of competing jurisdictions and the inequalities that might arise for one of the parties, and it would support rules on jurisdiction relating to cross-border family law disputes.[108] The Society also recognised the advantages of action in succession matters, while respecting national legal traditions. But it was opposed to the proposal for a European register of wills.[109]

62.  We asked for the Government for their reaction to the Hague proposals in this area. Baroness Ashton told us that there were everyday problems in cross-border situations, for instance where people owned property in different countries subject to different laws. In such cases there was a need at least for a framework for resolving any issues that might arise.[110] While respecting the different legal traditions of Member States, it was important that people should have the appropriate information on how to act.[111] She believed that EU action could progress without defining concepts such as family and marriage.[112]

63.  As mentioned above, we believe that EU action in civil law is acceptable only if it adds value and is absolutely necessary to improve the everyday life of EU residents in situations having a cross-border dimension. This is even more so in the sensitive area of family law, where action at the EU level may challenge deeply-founded legal and social principles in Member States. We are not convinced that action in family law matters is required to the extent proposed by the Hague Programme. Supplying the individuals concerned with more and better information on their rights under the laws of Member States may be a more effective way of addressing cross-border issues than EU legislation. We believe that such avenues should be explored before embarking on the very ambitious legislative agenda set out in the Hague Programme.

Quality of EU legislation

64.  The Hague Programme calls for action to ensure coherence and upgrade the quality of Community law in matters of contract law, by measures of consolidation, codification and rationalisation of legal instruments in force and by developing a common frame of reference. We have examined these proposals in detail in the context of our current inquiry into European Contract Law. In the context of the Hague Programme we asked Baroness Ashton what action was envisaged in this area, but did not receive a clear-cut answer. The Minister told us that any such measures would support the drive for better regulation and promote better problem-solving and better understanding of the issues involved. But she added: "I do not yet have any straightforward 'this is what we mean, this is what we are going to do'".[113] Improving the quality of EU legislation is always welcome but the development of a common frame of reference for contract law raises a number of issues. We will return to these in our Report on European Contract Law.

Relationship with international instruments

65.  The Hague Programme calls on the Commission and the Council to ensure coherence between the EU and the international legal order and engage in closer relations with international organisations such as the Hague Conference on Private International Law and the Council of Europe. Accession of the Community to the Hague Conference should, according to the European Council, be concluded as soon as possible. Baroness Ashton welcomed the Commission's involvement in the Hague Conference, as it would take full account of what was happening in the Conference and ensure that EU action was not contradictory to it. The EU would act within the limits of its competence and Member States within the limits of their competence.[114] While recognising that Community participation in discussions in international fora may be necessary to ensure consistency and coherence between EC law and international instruments in civil law, we remain concerned about the external competence implications and the potential limitations that Community involvement may place on UNITED KINGDOM negotiations in such fora. The point has become more acute as the proportion of common law countries in the EU has decreased as a result of enlargement.

97   p 48. Back

98   IbidBack

99   Q 79. Back

100   Q 76. Back

101   Q 72. Back

102   The Rome II Regulation, 8th Report, Session 2003-04, HL Paper 66. Back

103   QQ 76, 77. Back

104   QQ 70, 71. Back

105   QQ 74, 80, 81. Back

106   p 49. Back

107   Ibid. Back

108   Ibid.  Back

109   pp 49-50. Back

110   Q 80. Back

111   Q 82. Back

112   Q 85. Back

113   Q 195 of the Minister's evidence to Sub-Committee E for its inquiry into European Contract Law. The evidence session took place immediately after the Minister's evidence session on the Hague Programme. The full transcript of the Minister's evidence on contract law will be published in that report. Back

114   Q 106. Back

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