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

  Thank you for your reply of 20 January 2006[166] which was considered by Sub-Committee E (Law and Institutions) at its meeting on 1 February.

  Your comments on the Government's position are very helpful. In particular we welcome your assurances that the changes to the double date provisions will not affect Member States which do not operate double dating. We are also in favour of measures to ensure transparency of costs and are pleased to see that this is something which the Government fully support.

  We note what you say regarding the need for clarification in some areas and would be grateful if you would advise us of the current discussions in the Working Group. Are Member States now agreed on a deadline for service of one month? Are there any other matters in the proposal which are likely to be contentious?

  The Committee decided to retain this document under scrutiny.

9 February 2006

Letter from Rt Hon Baroness Ashton of Upholland to the Chairman

  Thank you for your letter of 9 February. You asked for details of the current discussions in the Working Group, in particular whether Member States were agreed on a deadline for service within one month and whether there were other matters in the proposal which were likely to be contentious.

  I enclose the latest Presidency text which was issued recently. In it you will see that indent (c), the amendment to Article 7(2), retains the requirement for a deadline for service of one month. This follows almost unanimous support from Member States. However following concerns about what the receiving agency should do if service was not possible within one month a provision has been added to clarify that the receiving agency should continue to attempt service until a date that the transmitting agency may provide on the standard form.

  In indent (d), the amendment to Article 8(1), the text has been amended to say that the receiving agency is only obliged to notify the addressee in writing about the possibility to refuse the document on grounds of language. This followed concerns from many Member States about the practicalities of giving this information orally. The text also clarifies now to where the documents should be returned if they are refused after they have been served. The rest of the provision has been reordered without affecting the substance.

  The only change of substance to the amendment to Article 8(3) is to clarify that when a translation is provided the original document should accompany it. There have been no changes of substance to indent (e), the amendment to Article 9, but a recital will indicate that double dating applies in only a limited number of Member States.

  Indent (i), the amendment to Article 15, now clarifies that direct service only applies where it is permitted under the law of that Member State. Indent (j), the new Article 15(a), now includes an added paragraph 2 clarifying that where service is through diplomatic or consular agents under Article 13 or by post under Article 14 the relevant authority has a duty to inform the addressee of his/her right to refuse the document on grounds of language and to give information about where the document should be returned.

  In indent (l), the replacement of Article 23, an additional paragraph 1(a) has been added following concerns from several Member States that much of the information provided by Member States to the Commission should be published in the EU's Official Journal.

  There is a proposal to codify the text by adding a new Article at indent (m) which repeals the current Regulation. This should make it easier for authorities and practitioners to use the new Regulation when it enters into force.

  The Government is able to support all of these changes and the remaining amendments which are mainly technical or have been made to simplify the text.

  The main contentious issue is whether Member States should be able to charge for service under Article 11(2) (indent (g)). A minority of Member States have called for there to be no costs for service. As I said in my previous letter the Government believes strongly that the question of whether there should be costs for service should be a matter for each Member State to decide and we will oppose any moves that prevent Member States from making that decision. However we can support the Presidency's text which now stipulates that there should be a single fixed fee in each Member State and that Member States should notify the Commission of how this fee should be paid.

  I understand that the Presidency would like to obtain agreement on this proposal at the Council on 27 and 28 April. It would be helpful, therefore, if your Committee is able to clear it from scrutiny before then.

22 March 2006

Letter from the Chairman to Rt Hon Baroness Ashton of Upholland

  Thank you for your letter of 22 March 2006 which was considered by Sub-Committee E (Law and Institutions).

  Your explanation of the changes in the new Presidency text is very helpful. We are pleased to see that transparency of costs has been enhanced and that changes have been made to improve the clarity of the provisions.

  We note that a proposal has been made to consolidate the regulations once the new provisions have been agreed. We have not seen the consolidated text and would be grateful if you would provide a copy.

  We have decided to clear the proposal from scrutiny.

24 April 2006

Letter from Rt Hon Baroness Ashton of Upholland to the Chairman

  Thank you for your letter of 24 April. I am very grateful to your Committee for clearing this proposal from scrutiny. Although the Austrian Presidency originally planned to seek a general agreement on this text at the April Council I understand they now plan to take this proposal to the Council in June.

  I note that you say that you have not seen the consoldiated text and would like to be provided with a copy. The consolidated text will only be available once the amended Regulation has been agreed. I will ensure that you are provided with a copy then.

9 May 2006

Letter from the Chairman to Rt Hon Baroness Ashton of Upholland

  Thank you for your letter of 9 May 2006 which was considered by Sub-Committee E (Law and Institutions) at its meeting of 7 June 2006.

  We note that the proposal was agreed at the June Council and look forward to receiving a copy of the consolidated text in due course.

8 June 2006

Letter from Rt Hon Baroness Ashton of Upholland to the Chairman

  Your Committee cleared this proposal from scrutiny on 24 April but I thought you would find it useful to have an update on progress in the negotiations.

  As I anticipated in my letter to you of 9 May the Council agreed a general approach in June. The final text included a few changes to the text I sent you in March, some of these were technical and the others I describe below. However none of these changes significantly change the substance of the March text.

  First the following has been added to Article 1(1): "It shall not extend in particular to revenue, customs or administrative matters or to liability of the State for actions or omissions in the exercise of state authority (`acta iure imperii')". This follows the wording used in other recent civil judicial co-operation proposals. As I have explained to the Committee in the context of those other proposals the Government is of the view that the effect of this exclusion is very limited as most, if not all, acts this wording would cover do not fall within the meaning of civil and commercial matters. Its inclusion, however, is a matter of political importance to several Member States.

  In Article 23 a requirement has been added to ensure that Member States tell the Commission if they operate a "double date" procedure. The date of a review of the Regulation in Article 24 has been changed to 1 June 2011. The proposed Article 24A to repeal the original Regulation has been deleted. Instead the Presidency decided that after the delivery of the European Parliament's opinion the Commission should submit an amended proposal which will address the question of codification or recasting of the existing Regulation.

  In addition to the changes to the recitals indicated in the footnotes to the text of 10 March two new recitals were agreed. The first states that the Regulation should not apply to service of a document on the party's authorised representative in the Member State where the proceedings take place, regardless of the place of residence of that party. This clarifies that such service is not cross-border and therefore the Regulation should not apply. The second says that the requirement of a single fixed fee for service should not prejudice the possibility for Member States to set different single fixed fees for different types of service as long as they respect the principles of proportionality and non-discrimination.

  Earlier this month the European Parliament adopted its report on this proposal. I enclose a copy for your information. Apart from some minor differences in wording in the recitals the proposed amendments align the text with that agreed by the Council. In addition the European Parliament has asked the Commission to submit a codified version of the Regulation which incorporates these amendments.

  We await the decision of the Commission as to whether a codified version will be submitted. If it is I shall of course ensure your Committee receives a copy.

25 July 2006

166   Correspondence with Ministers, 45th Report of Session 2005-06, HL Paper 243, p 477. Back

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