Select Committee on European Union Fortieth Report


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 point?

  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 these questions.

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

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