ROME III: LAW APPLICABLE IN MATRIMONIAL
MATTERS (11818/06)
Letter from the Chairman to Rt Hon Baroness
Ashton of Upholland, Parliamentary Under Secretary of State, Department
for Constitutional Affairs
The proposed Rome III Regulation was examined
by Sub-Committee E its meetings on 18 October and 1 November.
At the first meeting the Committee had the benefit of hearing
from your officials and also Professor Paul Beaumont, Special
Adviser in your Department and in the Scottish Executive. It was
very helpful to have them explain the detail of Rome III and to
indicate those issues to which the Government were giving further
consideration. As you are aware, the timing of the meeting was
not perfect in that the Government were in the final stages of
reaching their decision on whether to opt in to the proposal.
We have now learned that the UK has not opted in. We nevertheless
hope that the following will be of assistance to the Government.
As you may know, in addition to our usual scrutiny
we have been specifically requested by COSAC to consider whether
Rome III complies with the principles of subsidarity and proportionality.
This is an exercise in which all national Parliaments have been
invited to participate. We are in the process of reporting our
conclusions to COSAC but would like to take this opportunity to
write to you directly setting out our views which we hope will
be helpful to the Government as the negotiations on Rome III proceed.
Although the COSAC exercise is directed at subsidarity
and proportionality, it is necessary first to consider the question
of vires. If the Treaty does not give the Community the
necessary power to act, no question of subsidiarity arises. As
the evidence of your officials and special adviser and of other
parties has revealed, the present proposal raises both vires
and subsidiarity questions.
The Commission's draft Regulation refers to
Article 61(c), which in turn refers to Article 65. Article 65,
you will recall, provides:
"Measures in the field of judicial cooperation
in civil matters having cross-border implications, to be taken
in accordance with Article 67 and insofar as is necessary for
the proper functioning of the internal market, shall include ...
(b) promoting the compatibility of the rules applicable in the
Member States concerning the conflict of laws and of jurisdiction".
Accordingly measures under Article 61, which
can include harmonising conflicts rules, must relate to matters
having cross-border implications and be necessary for the proper
functioning of the internal market. We note that the Czech, Dutch
and Scottish Parliaments have queried the "necessity"
of the present proposal, as have other interested parties. Professor
Beaumont told the Committee that neither the Commission nor the
Court of Justice in fact attaches much weight to the wording of
Article 65. This gives us concern. We believe that the Commission
should indeed make out a case for legislative action demonstrating
clearly the relationship with the internal market. In this context,
and also in relation to the application of the principle of subsidarity,
we are impressed by the criticisms made by interested parties
of the statistical analysis set out in the Commission's Impact
Assessment on which the Commission bases its case for legislative
action. We think they make a good point.
Further, even if a case can be made for a measure
harmonising conflict rules within the Union it is necessary to
look critically at each and every provision of the proposal to
ensure that the measure is necessary for the proper functioning
of the internal market. For example, Article 7, which provides
a residual jurisdiction rule which could fill a gap in a few Member
States' laws, appears to relate to persons who have little connection
with the internal market or the free movement of persons.
As regards the application of the principle
of subsidarity, our starting point is that harmonisation of conflict
of laws rules is expressly contemplated by the Treaty as one means
by which the Community will establish an area of freedom, justice
and security. There is already a substantial body of Community
private international law, including jurisdictional and recognition
rules relating to matrimonial causes and child custody. As the
Commission states, no Member State acting alone is able to solve
the sorts of problems described by the Commission. Harmonising
jurisdictional and conflicts rules internationally is not something
which can be achieved by an individual Member State, at least
if it is to be done on the basis of reciprocity and mutual recognition.
The appropriate level is the international, not the national one.
Neveretheless, in order to ensure compliance
with the principle of subsidiarity, the Commission is required
to make the case for legislative action. The criticisms of the
Commission's statistical analysis (mentioned above) are also relevant
when considering whether the Commission has substantiated its
reasons for Community legislation. The limitations of the study
and the substantial variation in the figures raise doubts as to
whether the conclusions which the Commission seeks to draw for
the whole Union are justified. We question whether the statistics
provide a safe basis on which to act and we agree with the Scottish
Parliament that further qualitative research should have been
conducted.
Under the principle of proportionality the form
of Community action should be as simple as possible and also leave
as much scope for national decision-making as possible. In this
context the Impact Assessment sets out and evaluates a number
of options. However, we note that this aspect of the Assessment
has also met with criticism from practitioners, particularly as
to the conclusions drawn by the Commission on the practicalities
and costs of implementing the Commission's preferred options.
It is, we believe, significant that the large majority of, if
not all, Member States would be required to change their laws
substantially. There may also be substantial costs in ascertaining,
and difficulties in applying, foreign law. We question whether
the Commission appreciates the full implications of its proposal
and whether the objective might be achieved by simpler, possibly
less prescriptive means.
It has been suggested that if the jurisdictional
rules (Brussels II) were to be improved then it would not be necessary
to harmonise applicable law rules. We are impressed by the arguments
raised by academics and legal practitioners in this respect and
the latter's concern that the Impact Assessment does not adequately
address this issue. We conclude that there are doubts whether
the proposal is of a proportionate response in the circumstances.
Finally, we have considered the potential effect
of Rome III on the so-called "rush to court", the risk
of which would, in the Commission's view, be greatly reduced by
the introduction of harmonised applicable law rules. Again, there
is a lack of information as to the scale of the problem: such
evidence as there is appears to be anecdotal. We are, however,
impressed by the views of practitioners that the new Regulation
would continue to present parties with a variety of jurisdictions
and that rush to court would not be prevented where there was
no agreement between the parties on jurisdiction. Further, Professor
Beaumont confirmed our understanding that rush to court may be
driven by property (maintenance and division of property) and
child custody/access considerations rather than the substantive
law divorce to be applied. As you are aware the Commission's Green
Paper on conflict of laws in matters concerning matrimonial property
regimes is subject to separate scrutiny by the Committee.
2 November 2006
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