Select Committee on European Union Thirty-Seventh Report


52nd REPORT: ROME III — CHOICE OF LAW IN DIVORCE

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

  I am writing to respond to the Committee's report published on 7 December and to bring the Committee up to date with the state of play on the proposal on jurisdiction and applicable law in matrimonial matters ("Rome III").

  I was pleased to receive the Lords Report which was which added further detail to the helpful comments in your letter of 2 November 2006.[43]

  First, I can confirm that the Government decided that the on this occasion the UK should not exercise its power under our Protocol to Title IV of the TEC to opt-in to the negotiations on this proposal. It is a matter of record that the Republic of Ireland did not opt-in either.

  Turning to the Report, we broadly agree with the comments made by the Committee and have the following additional comments.

APPLICABLE LAW

  The Government considers that there would be significant difficulties in applying foreign law. It agrees that there are shortcomings in the ideas put forward to assist courts in applying foreign law.

PRACTICAL NEED

  The Government has questioned the practical need for this proposal since the Green Paper stage. It agrees that the evidence put forward by the Commission to justify this proposal has not done so. We share the Committee's doubts as to the adequacy of the impact assessment.

RUSH TO COURT

  The Government shares the doubts expressed by the Committee as to whether the new regulation would prevent rush to court where there is no agreement between the parties. A number of countries also share our doubts about whether there really is a rush to court in other than a very few cases.

SUBSIDIARITY AND PROPORTIONALITY

  We agree with the Committee that although the power exists under Article 65(b) TEC to promote the compatibility of rules concerning the conflict of laws, that the Commission must nonetheless make the case for such action. Among the issues the Commission should demonstrate is that "the measure is necessary for the proper functioning of the internal market". The Government shares the Committee's view that this has not been demonstrated.

  We note that the Committee was impressed by arguments to the effect that were the jurisdictional rules to be improved then it might not be necessary to harmonise applicable law rules. This is a matter that would require further study.

  I am grateful for the trouble that you and the members of your Committee have put in to studying this proposal.

  The UK is keeping a watching brief as the proposal is considered in the Council working group. Other delegations are also experiencing difficulties with the proposed rules on applicable law but do not share our ability not to opt-in. There must be a real risk that one or more of them may veto the proposal, given the requirement of unanimity, unless some accommodation can be found.

15 February 2007

Letter from the Chairman to Rt Hon Baroness Ashton of Upholland

  Thank you for your letter of 15 February setting out the Government's Response to the Committee's Report, Rome III-choice of law in divorce (52nd Report, 2005-06, HL 272). This was considered by Sub-Committee E (Law and Institutions) at its meeting on 7 March. We are pleased to note such a large measure of agreement between the Committee and the Government on this matter. The Committee was also interested to learn that a number of other delegations are having difficulties with the Commission's proposal. This confirms reports in the specialist press.

  We would be grateful if you would keep us informed of developments.

8 March 2007





43   Correspondence with Ministers, November 2006-April 2007. Rome III (11818/06). Back


 
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