HAGUE CONFERENCE ON PRIVATE INTERNATIONAL
LAW: ACCESSION OF THE EUROPEAN COMMUNITY (15835/05)
Letter from the Chairman to Rt Hon Baroness
Ashton of Upholland, Parliamentary Under Secretary of State, Department
for Constitutional Affairs
The proposed Council Decision was considered
by Sub-Committee E (Law and Institutions) at its meeting on 25
January. The Committee decided to retain the proposal under scrutiny
and would be grateful for your views on the following concerns.
You say that the proposal would not in any significant
way affect the practical conduct of negotiations in the Hague
Conference. However, we believe that it is a significant step
to move from "observer" to "member" status.
While this may increase the negotiating strength of the community,
as 25 States acting in a bloc, we can also see the potential
disadvantage in that a strong common law voice may be lost to
the debate. Would the United Kingdom still be able to speak as
regards those territories for which it is responsible but which
are not part of the European community? To what extent might its
advocacy of the common law position be compromised or fettered
by the duty of loyal cooperation?
We agree that, as a matter of legal theory,
accession to the Convention would not affect the extent or application
of external Community competence in the Conference. As you say,
the Community's external competence in this field derives from
so-called "internal rules" such as those listed in the
Declaration of competences annexed to the draft Decision. The
precise extent of community competence in relation to a particular
subject or agreement is therefore a matter of concern and conceivably
debate between the Commission and the Member States. The matter
is of particular relevance to the United Kingdom (and indeed Ireland)
who retain the right to "opt-in" to specific Community
private international law measures. Can we be assured that the
Government will, when it is considering whether to opt-in to a
particular measure, have regard to the external competence implications
of the proposal?
We have considered the Declaration of competences.
It is to be noted that the Commission starts with a general description
of its (internal) competence and then goes on to list a number
of instruments (the "internal rules") so far adopted.
What the draft Declaration does not indicate is the precise extent
of (external) competence resulting from each Regulation or Directive.
You will recall that on a number of occasions the Committee has
been concerned that a Commission proposal may seek to give the
Community rules universal application and not restrict them to
intra-Community transactions or procedures. Can we have your assurance
that the Government will continue to pay close regard to this
A further issue arises from the statement in
the draft Declaration that the extent of Community context is
"by its nature, liable to continuous development". It
would be helpful if we could have some clarification of this statement.
In particular, were a matter to become the subject of a proposal
for a Convention of the Hague Conference what would be the effect
if the Commission brought forward a proposal on the same or a
closely related matter for the Community? Would Member States
remain free to discuss and negotiate in the Hague Conference any
rule which might also become part of or affect the Community instrument?
We look forward to receive your response to
26 January 2006
Letter from Rt Hon Baroness Ashton of
Upholland to the Chairman
Thank you for your letter of 26 January. You
have expressed concern about the possibility that one consequence
of the European Community becoming a party to the Hague Conference
is that all the Member States of the EU will, as a result, on
many issues be required to act en bloc in the negotiations
in that forum and that this will inevitably diminish the force
of the United Kingdom's individual common law voice in those negotiations
would make four points in response to this concern. I should say
at the outset that even in areas governed by Member State competence
a duty of loyal cooperation is imposed on the Member States and
operates in external negotiations. This duty is established under
Article 10 of the EC Treaty.
My first point is that, as was pointed out in
the Explanatory Memorandum, the requirement for the Member States
to act en bloc derives, as a matter of Community law, from
the existence of external Community competence which in turn arises
principally as a result of the adoption of Community legislation.
Accordingly the obligation on the United Kingdom in a growing
number of instances to conform to Community positions in external
negotiations in the Hague Conference derives from the adoption
of that legislation, and not from the accession of the Community
to the Hague Conference. In this respect the change in the Community's
position from being an observer to being a full member of the
Conference will not be significant. In this context I am aware
of the recent decision of the Court of justice in Opinion 1/03
in which the Court has in certain ways extended the scope of application
of external Community competence. However that development does
not in any way weaken my clear view that the EC's accession to
the Hague Conference would not affect the circumstances in which
Community competence arises.
My second point is that it was generally agreed
during the negotiations on the Community's accession, that the
Member States should continue to contribute to discussions on
all matters which are being negotiated at the Conference, whether
or not those matters fall within the competence of the Community.
The one proviso was that Member States should not speak against
any aspect of a Community negotiating mandate. This pragmatic
and sensible arrangement was designed to avoid complex legalistic
arguments about competence impeding the smooth conduct of the
negotiations. It should ensure that the United Kingdom's voice
continues to be properly heard at the Conference and that we remain
a major contributing influence there.
My third point is that it is in the United Kingdom's
interest that the Community should be fully and properly participating
in the business of the Hague Conference; ensuring that the Community
becomes a full member of that organisation is a significant part
of that process. In the area of private international law the
United Kingdom has long supported the development of world-wide
conventions to further the harmonisation of the law in this area.
The Conference is the pre-eminent forum for the conclusion of
such agreements which, if successful, confer significant commercial
benefits and establish important protections for children caught
up in international legal disputes.
My fourth point is that the extent to which
the United Kingdom's policy objectives may in future be compromised
as a result of external Community competence will depend on the
particular dossier and issue in question. Inevitably some compromises
will be necessary in order to achieve a common position within
the Community, but I can assure you that we will continue to argue
as best we can for positions which are in the national interest.
On the basis of the latest Hague Convention, the 2005 agreement
on Choice of Court Agreements, where there was a substantial element
of Community competence and where the overall outcome was satisfactory,
I am cautiously optimistic that we can ensure that the new arrangements
can generally be made to work to our advantage.
In response to your question the United Kingdom
will remain able to speak at the Conference for those overseas
territories for which it is responsible but which are not part
of the EU. However I do not expect that contributions on this
basis are likely to be made regularly.
You have raised the importance for the United
Kingdom in this context of the opt-in under the Title IV Protocol
to which both the UK and Ireland are parties. I can assure you
that in deciding whether the United Kingdom should opt-in to any
measure under this Title the Government will give full and proper
consideration to the consequences for external Community competence
of so doing, although this will, of course, only be one of a number
of relevant considerations in making such a decision.
In the context of external Community competence
you have also raised the problem, which has arisen on various
dossiers, of the lack of any proper limitation on the scope of
instruments proposed by the European Commission. As you know we
have argued repeatedly for such limitations in order that the
requirements in Article 65 relating to cross-border implications
and what is necessary for the proper functioning of the internal
market should be adequately satisfied.
Finally you have highlighted the reference in
the draft Declaration of Community competence that such competence
is "by its nature liable to continuous development".
As I understand this reference, it is merely
pointing out that such competence is never finally fixed and will
increase whenever an instrument of Community law is adopted by
the Council. As a matter of Community law, where a subject area
falls within the competence of the Member States, external Community
competence arises only in this context at the moment when the
Community instrument is adopted and not before. Accordingly, on
the example you give, there would be no such external competence
merely on the basis of a proposal from the Commission. In such
cases the position of the Member States in negotiations at the
Hague Conference, which have already started, would be unaffected.
The retention of Member State competence would not prevent the
possibility of informal co-ordination between the Member States
during those negotiations.
17 March 2006
Letter from the Chairman to Rt Hon Baroness
Ashton of Upholland
Thank you for your letter of 17 March which
has been considered by Sub-Committee E (Law and Institutions).
We are most grateful for the full and clear explanations you have
given and also for your assurance that the Government will have
regard to the potential external competence implications of legislative
proposals under Title IV TEC when deciding whether or not to opt-in.
The Committee decided to clear the proposed
Decision from scrutiny.
27 April 2006