Select Committee on European Union Forty-Fifth Report


Letter from Baroness Ashton of Upholland, Parliamentary Under Secretary of State, Department for Constitutional Affairs to the Chairman

  I am writing to report back to you on the achievements of the UK Presidency of the Council of the EU in those areas of the Justice and Home Affairs (JHA) agenda in which this Department leads.

  Throughout the Presidency, our objective has been:

    —  to raise the profile of civil justice business within the European JHA agenda; and

    —  to demonstrate the important role of this business in enabling citizens to live, work, study, buy and sell and do business across European borders with the same security and ease of access to justice as at home.

  We have at the same time been alert to the need to ensure that action at European level is confined to those measures which can add value to what can properly be achieved at national level—ie, confined to cross-border issues.

  We have energetically taken forward the agenda of civil business inherited from Luxembourg, with a total of 31 working group days dedicated to civil business—more, we believe, than any previous Presidency. We held two Presidency events and shared with the Home Office responsibility for the JHA Councils in Luxembourg and Brussels and the JHA Informal in Newcastle.

  In Newcastle, we had a half-day in plenary session on civil matters, during which we tackled the long-running argument on the extent of the EU's power in terms of civil judicial co-operation (essentially, whether EU measures were to relate purely to cross-border cases or could cover purely domestic ones). The Committee is aware of the difficulties this issue has caused. We have always disputed the legal base for applying these measures to domestic cases and we successfully put the argument finally to rest. European measures are for cross-border cases only.

  The resolution of this argument contributed directly (1) to our achieving political agreement at the December JHA Council on a European Order for Payment (making it easier to obtain judgments on uncontested claims by providing a uniform EU wide procedure and ensuring that these judgments will be automatically recognised throughout the EU) and (2) at the same Council banking the significant progress made during our Presidency towards the creation of a European small claims procedure (making it easier for consumers to resolve small claims arising in other EU countries using a simpler, faster and cheaper procedure).

  We held a conference on contract law, which was the first coming together of the two networks established by the European Commission to oversee the academic work it had commissioned on a common frame of reference for European contract law (the network of Member States' experts and the stakeholders' network) with political representatives at the national and European levels and the Commission.

  The exercise of establishing a common frame of reference is intended to help improve the quality of the acquis: if there is a common understanding of the underlying values, the thought is that the body of Community law can be better drafted and more effectively and evenly implemented.

  We underlined to the conference that the foundation of our civil law ambitions was the understanding that progress must be built on mutual recognition and judicial co-operation. We could see no need for, nor any discernible demand for, a common code of European contract law, optional or otherwise. The clear message from the conference to the Commission was that future work on the common frame of reference should be directed towards the improvement of the consumer acquis.

  We and the Scottish Executive jointly hosted a civil law conference in Edinburgh, to which I point as the positive focus of the influence we sought to bring to European work in the civil law field. At that conference, we had high quality presentations and debate on a series of themes: family mediation and ADR, e-Justice, the work of the Civil Judicial Network, stream-lined court processes and the future—how we can work together to make practical solutions. We had the honour too to host the presentation by the Commission and the Council of Europe of the inaugural award of the Crystal Scales of Justice for innovative practice contributing to the development of civil law. The award was won by an excellent scheme run by the courts in the jurisdiction of the Court of Appeal of Rovaniemi in Finland. The ceremony suitably marked the occasion of the European Day of Civil Justice.

  The conference provided ample food for thought concerning the appropriate future direction for civil judicial co-operation in Europe beyond the Hague Programme. We want to see that pursued in a suitable way. One possibility might be a seminar on the subject, perhaps arranged by the Commission, though plans for such an event have not yet been made.

  I set out in the enclosed annex the stages reached in the several dossiers which were ongoing at the outset of our Presidency or begun during our Presidency.

  I am pleased that we have been able to progress Council business efficiently and to work closely with the Commission, the European Parliament and the Council Secretariat.

13 January 2006




    —  Text agreed at December Council, followed by EP vote in favour. Only recitals and standard forms remain to be completed by Austria.


    —  Reaffirmed support among Ministers at the JHA Informal for the dossier on the basis of the principle of proportionality, and on the basis that it will apply to cross-border cases. Definition of cross-border remains to be settled for this dossier.

    —  December Council agreed in principle on six key issues: written procedure, time limits for each stage of the procedure, use of communications technology for hearings, no need to be represented by a lawyer, costs should be proportionate, and there should be a review clause.

    —  Second reading of the proposal completed in the Council Working Group on 7 December.

    —  Second revised Presidency text produced with Austria ahead of the transition.

    —  The European Parliament expects to present a draft report at the end of January.


    —  Common understanding on the text reached at the December Council on all issues except for those of cross-border and subsidiarity.

    —  The opinion of the European Parliament is awaited.


    —  The Working Group completed its consideration of all the amendments proposed by the European Parliament. There was a detailed debate on the topic of defamation which was not confined to the specific amendments proposed by the Parliament. This was a valuable discussion that to a great extent exposed both the preferred positions of Member States and also other positions which they might accept in the event that their preferred positions were not adopted. In particular it threw up a new proposal from Germany that appeared to have a great initial support among Member States. No final decisions were taken in the Group on this topic or on other contentious issues.


    —  A successful six months began with final sign-off of the Committee's opinion on international parental child abduction and the Schengen system. The SIS/SIRENE Committee has now in turn asked the Commission to work on specifications for additions to the system which would help to prevent parental abduction of children. The General Questions group will continue to take an interest in the progress of this work.

    —  Progress made on the civil justice financial perspectives for 2007-13, with two debates in the working group. These revealed common concerns amongst many Member States about Commission transparency and accountability in setting of objectives and selection of civil justice projects for funding. A fresh text reflecting many of these concerns should issue very shortly.

    —  UNCITRAL negotiations on international carriage of goods in Vienna at end November/beginning December went well. A Community/US/Japanese/Norwegian paper on jurisdiction obtained general support from the plenary and should protect the London courts' position on exclusive jurisdiction agreements, including the ability to support these by issuing injunctions against suing elsewhere.

    —  The anticipated European Court of Justice judgement on the Lugano reference has still not appeared, and will now (when it emerges) be for discussion during the Austrian Presidency.

    —  Unfortunately there was no progress on Gibraltar, and the civil law dossiers blocked by this obstacle remain blocked.


  Under the UK Presidency the dossier has progressed to cover several major areas of concern for the UK. In particular:

    —  The legal base of the proposed Council Regulation and Decision to establish the Fundamental Rights Agency, including the legal base for a Council Decision establishing the programme "Fundamental Rights and Citizenship" as part of the Framework Programme on Fundamental Rights and Justice 2007-13. The overall majority of Member States is in favour of article 308 TEC as the main legal base, while some accept the use of article 284 TEC as a complementary legal base.

    —  The reference to the Charter of Fundamental Rights in the Framework Programme on Fundamental Rights and Justice 2007-13 will be reviewed by the Commission to explain it is intended as a reference to existing rights.

    —  The majority of Member States is in line with the UK position to limit any third country remit to candidate countries (some Member States suggesting to revisit this issue in five years).

    —  There is overall consensus that the Agency should avoid duplicating other human rights bodies, especially the Council of Europe.

    —  The subject of the Agency's management structure has only been partly covered and the group is waiting for a written version of the counter-proposal by France (to which several Member States are in favour). This issue is closely linked with that of the independence of the Agency. From the discussions held so far, it is possible to conclude that the overall majority of Member States, in line with the UK, is concerned about the excessive influence of the Commission in the management structure of the Agency (particularly in the Management Board, Executive Board and the power to veto co-operation agreements between the Agency and other human rights bodies). However, it is not clear whether the UK could create consensus around the idea of an Agency strongly influenced by the Council.

    —  The advisory role of the Agency under article 7 TEU has also been tackled with many Member States opposing the inclusion of this reference. However, it is possible that the Agency can be called as "independent person" on the basis of article 7 TEU even in the absence of a specific reference to this in its Regulation.

    —  The Commission proposes to merge the Network of Independent Experts (NIE) with the Agency. This would be in line with the UK position as long as the work of the NIE (internal monitoring of Member States' compliance with human rights on behalf of the European Parliament) is not absorbed in the Agency's tasks.


    —  We were able to hold only one working group during our Presidency but we completed a full read through of the proposal and called on Member States to provide written comments on the basis of which we redrafted the text. This will now be discussed during the Austrian Presidency.

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