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 Commission's Communication was considered by Sub-Committee E (Law and Institutions) at its meeting on 1 March. We are grateful for your Explanatory Memorandum and for setting out, so clearly, the Government's concerns. We agree that the Commission must make a much stronger case to justify the use of the passerelle. It seems clear from our preliminary examination of the proposed Regulation on maintenance obligations (the subject of a separate letter) that harmonisation of applicable law would have substantial implications for the United KIngdom and that the Commission may have already strayed into areas of substantive law (see, for example, Articles 17(2) and 36 of the proposed Regulation). We also agree that were a Decision to use the passerelle to be formally proposed close attention would need to be paid to the precise wording. "Measures relating to maintenance obligations" (emphasis added) is far too wide.

  The Committee decided to retain the proposal under scrutiny.

2 March 2006

Letter from the Chairman to the Rt Hon Baroness Ashton of Upholland

  The proposed Regulation was considered by Sub-Committee E (Law and Institutions) at its meeting on 1 March. The Committee also considered the Commission's proposal to use the passerelle in Articles 67(2) TEC to allow provisions on maintenance to be dealt with by qualified majority voting. I am writing to you separately on that matter.

Need for Regulation

  Thank you for your Explanatory Memorandum pointing out the main features of the Commission's proposal and drawing attention, in particular, to its relationship with a new Hague Convention on maintenance obligations. This is a matter to which I shall return later. First, there is a question of the legal basis and the scope of application of the proposed Regulation. The Commission cites Article 61(c) which, as you will recall, refers to Article 65 and the requirements that there be "cross-border implications" and that the measures be necessary for the proper functioning of the internal market. The Commission argues that the proposal would contribute to the free movement of persons and in the absence of any detailed statistical information seeks to deduce from certain EUROSTAT data, a DAPHNE research project and estimates of maintenance debts in Spain and the UK that there could be up to 62,000 maintenance claims subject to legal action as a result of inter-EU marriages. Have the Government subjected this analysis to critical examination?

  Do the Government accept that the Commission has shown a need for the sorts of measures proposed? As you indicate, there already exist international conventions (including the 1973 Hague Convention currently under revision), the Brussels I Regulation and the EEO Regulation. While improvements might be made to enforcement, for example by removing the need for exequatur, is there a genuine need to have harmonisation of choice of law rules?


  We would also be grateful for clarification on the particular position as regards the United Kingdom. As you say in your Explanatory Memorandum a significant proportion of maintenance traffic in and out of the UK is with the USA, Canada and Australia. You also say that the United Kingdom need not participate in the adoption of the Regulation unless it opts-in. It would be helpful if you could provide a statement of the advantages and disadvantages of the UK opting-in to this Regulation.

Importance of detailed examination

  We are pleased to see that you will be consulting widely on the Commission's proposal, At first glance it appears that the Commission's text may raise a number of points of policy and detail. Take, for example, page 20 dealing with Articles 16-19. Clarification would seem to be necessary between Articles 16 and Articles 17(1)(e). Should different rules apply to the right to seek reimbursement and the right to obtain reimbursement? Article 17(1)(d) raises a question as to whether the applicable law should govern a limitation period and time limits on the institution of proceedings. Article 17(2) appears to contain a rule of substantive law under the guise of defining the scope of applicable law. Article 18 raises questions relating to the scope of application of the Regulation and taken with Article 1 raises a question as to whether or not the Regulation would have universal application. Would the Regulation oblige the United Kingdom to adopt the same jurisdictional and choice of law rules in a case which involved a third state, such as Australia, the United States, and no other Member State? Why does Article 19 provide a different rule where the choice of law rules lead to the application of a non-Member State? It may be that the Commission can provide good answers to all these questions. The simple point we are making here is that the Regulation will need careful examination, Article by Article and line by line.

United Kingdom

  We note that the Government have reservations about the inclusion of rules governing applicable law in the Regulation. You say that the benefits of harmonising applicable law rules across the EU has yet to be clearly identified. You also say that Article 21 (which we believe cannot apply to any other Member State than the United Kingdom) needs amendment and that it is unlikely that it is the Commission's intention to harmonise conflict rules between the different UK jurisdictions. But why if the Commission is prepared to harmonise conflict rules in a case involving the UK and Canada should it not be equally concerned about a case between England and Scotland? The latter is more likely to have implications for the internal market.


  Chapter VIII deals with cooperation and would require the designation of central authorities and the provision of information, including personal data, between central authorities. This chapter raises a number of questions. First, what sort of central authority is envisaged? Would it be a judicial authority or a body such as the Child Support Agency? Second, what safeguards will the individual, the subject of the request, have? There are limitations on the use of information (Article 46) and it appears that the debtor, after the event, must be notified of his rights under the data protection Directive. Are the Government satisfied with the Commission's analysis of the impact of the provisions in Chapter 8 and of the other Articles in the Directive as set out in Table 7 of the Commission's Impact Assessment?

Hague Convention

  The relationship of the proposed Regulation with the Hague Convention is, as you indicate in your Explanatory Memorandum, of critical importance both from the general position of the United Kingdom and the detail of the Regulation. As regards the former, you say that the new Hague instrument has significant attractions for the UK because of the volume of maintenance enforcement cases which lie outside the EU. You will recall that in our letter dealing with the proposed accession of the Community to the Hague Conference we raised a number of questions relating to the practical implications regarding the exercise of competence. We asked, among other things, what would be the position if a matter was being negotiated in the Hague Conference and then the Commission put forward its own proposal. The present position as regards maintenance obligations is exactly the sort of case we had in mind. We therefore look forward to receiving your reply on this point and would be particularly grateful if you could explain whether the United Kingdom's position would be better if it did not exercise its right to opt-in to the proposal in question.

  We look forward to receiving your response on the above matters. The Committee decided to retain the proposal under scrutiny.

2 March 2006

Letter from Rt Hon Baroness Ashton of Upholland to the Chairman

  I am writing to bring you up to date in regard to progress on the proposed maintenance Regulation. I apologise that you did not receive a response to your letter of 2 March to me about the EU proposal, however I hope this response will provide a response that answers all the points raised.

  The Government has decided not to opt in to the above proposal, under Title IV of the protocol to the Amsterdam Treaty and I want to provide a brief explanation as to why we reached this conclusion.

  I should stress at the outset that the UK is very keen to develop and deliver improvements in the way international maintenance cases are handled. Our aim is to ensure payments are delivered to those that need and deserve these as simply, quickly and cost-effectively as possible. This is particularly important for the vulnerable clients involved in such cases, which are often for very small but desperately needed sums of money.

  The UK, like all Member States, is fully engaged in the well-advanced work on the proposed Hague Convention on these issues. The work in the Hague is nearing completion. That work is particularly important for the UK since the Hague potentially stretches globally, and most of our international maintenance cases involve non-EU parties.

  Given the priority we attach to our Hague work, it is essential for the UK that we remain able to negotiate such international agreements. Recent developments appear to have called into question the extent of Community competence, particularly as regards the future development of Community law in this area. This uncertainty over the extent of the Community's external competence has been a significant factor in our considerations on whether to opt-in. We concluded that it was most important to be absolutely certain that we are able to continue to negotiate international agreements as we can now.

  You are aware from our earlier Explanatory Memorandum of our concerns about the inclusion of rules on applicable law in the proposal. The Commission thought it right to bring forward a proposal incorporating rules of applicable law, which in the end we judged we could not support, due to the limited potential benefit from the proposal and some significant associated risks. We would have been happy to support a proposal limited to improve mutual recognition and enforcement of judgments, which ensured synergy with the proposed Hague Convention and other international instruments, as was envisaged in the EU's Hague Programme.

  I am aware that some Member States apply foreign law in maintenance cases, yet this is wholly unknown within the UK's Family Law jurisdictions. Introducing such an approach in our common law jurisdictions would imply a new and additional process for the clients affected which, in the context of our legal arrangements, would inevitably build in complexity and delay and increase costs for those cases, all of which are particularly unwelcome for the vulnerable clients involved.

  As you are aware, in the context of the work on the Hague Convention the rules on applicable law are planned to be optional. That is a pragmatic approach which allows applicable law rules to be used where those are wanted but also allows other Member States, such as the UK, not to be required to apply foreign law in circumstances when they consider it inappropriate.

  We have considered this question very seriously and consulted stakeholders here. We have concluded that there is no likelihood of our being able to agree to a measure in this form. Were we to have opted-in it would have to be on the basis that we would strongly resist features of the proposal which currently seem central within it.

  Since the proposal is subject to unanimity, that may have required us to block it, on the understanding that under the terms of the Title IV Protocol, the other Member States may, after a reasonable time, proceed without us. That may have been viewed as unhelpful by partner Member States.

  Notwithstanding the formal legal position in respect of the opt-in protocol we do plan to continue to engage fully and constructively in the development of this proposal in the hope that we contribute positively to the improvement of the measure. Our hope would be that when negotiations are concluded that we will be able to accept the proposed Regulation under Article 4 of the Title IV protocol.

  Your letter also mentioned the importance of detailed examination. The Government is committed to consulting as widely as possible on the Commission's proposal. A stakeholder group has been set up including members from the Law Society, Resolution, the Judiciary and other Government Departments. We have also consulted the Lord Chancellor's Advisory Committee on Private International Law.

  I agree that certain aspects of the proposal require very detailed examination, and we are undertaking such an analysis. This will include the specific points on the articles you raised.

16 May 2006

Letter from the Chairman to Rt Hon Baroness Ashton of Upholland

  Thank you for your letter of 16 May which was considered by Sub-Committee E (Law and Institutions) at its meeting on 7 June. The Committee notes that the Government have decided not to opt-in to the above proposal and that the Government accord priority to the work in the Hague Conference on the revision of the 1973 Convention. We agree that this is the better way forward, especially in light of the proposed scope of application and unsatisfactory nature of the Commission's proposal as described in our letter of 2 March.

  The Committee decided to retain the proposal under scrutiny and would be grateful to be kept informed of developments.

  Finally, you will recall that we also wrote to you on the subject of the Commission's Communication of 15 December 2005 (Doc 5198/06). We would be grateful if you could let us know what is happening as regards this Communication. Has there been any discussion of it in the Council and if so what conclusions have been reached?

8 June 2006

Letter from Rt Hon Baroness Ashton of Upholland to the Chairman

  Thank you for your letter of 8 June. You have asked for an update of what is happening in regard to the Commission's Communication of 15 December, in particular, if there has been any discussion of it in the Council and if so what conclusions have been reached.

  The Communication was made alongside the Commission's proposal for a Regulation concerning jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations (COM (2005) 649). As you are aware the UK exercised its option not to opt-into the proposed Regulation, but continues to fully participate in negotiations with a view to adopting the measure at a later date if conditions are right and those areas of concern are removed.

  The Communication suggested that the measure was about the collection of a civil debt and could be viewed as a financial matter, to be taken forward under qualified majority voting (QMV) and suggested that the Council might use the passerelle procedure in Article 67(2) to give this effect.

  The "passerelle" allows the Council to decide to provide that a matter currently subject to unanimity and consulation with the European Parliament should instead be subject to QMV and co-decision. The suggestion would allow this and future measures concerning maintenance to be dealt with under QMV and co-decision.

  The Communication was debated in the Civil Law Committee under the current Austrian Presidency on 13 February 2006. The majority of Member States did not support it. There is no intention to raise the matter again under the Austrian Presidency, neither is there any intention to raise the matter under the incoming Finnish Presidency. The Communication requires a formal proposal from the Commission under Article 67(2) of the Treaty, and a unanimous decision of the Council, after consultation with the European Parliament. The Communication is not a formal proposal, although it did have a draft proposal attached to it.

  It is clear at this time that the Commission cannot achieve unanimity if the matter were to proceed to a vote on a Decision and the indications are that the Commission will not press the matter further.

26 June 2006

Letter from the Chairman to Rt Hon Baroness Ashton of Upholland

  Thank you for your letter of 26 June which has been considered by Sub-Committee E (Law and Institutions). We note that the Commission's proposal to use the passerelle to provide for measures relating to maintenance obligations to be subject to QMV and co-decision has not received the support of the majority of Member States and that neither the present Austrian nor upcoming Finnish Presidency wishes to put the matter back on the agenda. As, therefore, the present proposal appears to have no future and any formal decision put forward by the Commission would have to be submitted to Parliament for scrutiny, we are content to release the document from scrutiny.

6 July 2006

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