Memorandum by Ms Diana Wallis, Member
of the European Parliament for Yorkshire and the Humber, Vice
President of the European Parliament, Member of the Committee
on Legal Affairs
A. INTRODUCTION
1. In 1997, when policies relating to visas,
asylum, immigration and other policies relating to the free movement
of persons were moved to the Community pillar, the United Kingdom
and Ireland obtained a Protocol covering Title IV EC.[1]
This Protocol grants both Member States an unprecedented level
of flexibility, compared for with previous differentiation in
the areas of EMU or the "Social chapter".[2]
It not only constitutes an "opt-out" but also contains
a mechanism to selectively "opt-in" at various stages
of the procedure. It is possible to opt-in either (a) within three
months after a proposal or initiative has been presented to the
Council or (b) at any time after the adoption of the relevant
measure by the Council.[3]
If the United Kingdom or Ireland opt into a proposal but agreement
cannot be reached in Council "after a reasonable period of
time", the remaining Member States can go ahead and pursue
the negotiations between themselves and adopt the measure which
would not bind the excluded Member State.[4]
Finally, Ireland alone has the possibility to unilaterally terminate
its participation in the Protocol.[5]
2. This submission examines the impact of
this mechanism in relation to the critical area of judicial cooperation
in civil matters, a field often overlooked which comprises matters
as diverse as small claims, the recovery of maintenance, and uniform
rules on the law applicable to contractual and non-contractual
obligations, all relevant to the daily life of citizens throughout
the EU and having implications as to the homogeneity and good
functioning of the Internal Market.[6]
3. The Protocol on the position of the United
Kingdom and Ireland in respect of the Area of Freedom, Security
and Justice adopted by the Lisbon IGC on 18 October 2007 considerably
widens the material scope of the 1997 Protocol.[7]
However, it does not alter in any significant way the situation
in relation to judicial cooperation in civil matters. I will argue
that the experience acquired over the last decade in the application
of the Protocol to the area of civil law[8]
reveals shortcomings in the process that already affect the United
Kingdom as such, but also its long-term relationship with other
Member States. It is all the more important to draw from existing
experience in the light of the expanding scope of the mechanism.
B. EXPERIENCE
OF THE
PROTOCOL IN
RELATION TO
JUDICIAL CO-OPERATION
IN CIVIL
MATTERS
4. Back in 2004, Professor Steven Peers
wrote that "in practice, the United Kingdom has opted in
to all proposals concerning asylum and civil law and nearly all
proposals concerning illegal migration."[9]
This statement unfortunately no longer holds true, at least in
the field of civil law.
5. The United Kingdom Government has recently
made near-systematic use of the 1997 Protocol by not opting in
at the outset to three important legislative instruments (on the
law applicable to contracts—hereinafter "Rome I"—on
matters relating to maintenance obligations and to divorce),[10]
arguing that it still has the possibility to accept the instrument
once it is adopted.[11]
This seems to represent a political trend which we can expect
to be continued and indeed expanded to other policy areas if the
Treaty of Lisbon enters into force. Such an approach is problematic
for several reasons.
(i) Fragmentation of the internal market
6. Firstly, it overlooks the fact that these
civil justice issues have their roots in the Internal Market,
and their unequal operation across that market threatens both
its homogeneity and good functioning, to say nothing of the implications
on "access to justice" for European citizens and enterprises.
Indeed, an explicit link with the Internal Market even exists
in the legal base for action in the field of judicial cooperation
in civil matters.[12]
The use of the Protocol undermines the homogeneity of the Internal
Market and will prevent UK citizens from using instruments specifically
designed to make their lives easier, in particular when they take
advantage of their freedom to move or to trade across the EU and
are then faced with a problem, such as a divorce, a spouse unwilling
to pay maintenance or a debtor refusing to pay up. The United
Kingdom's half hearted commitment to civil justice at a European
level thus not only leads to a fragmented area of justice but
also to a fragmented Internal Market. Indirectly but equally detrimentally,
such an approach also threatens to limit the influence of the
common law on the future development of European civil and commercial
law; this is arguably a loss both for the United Kingdom and for
the European Union as a whole.
7. To take a concrete example, the United
Kingdom's opt-out of the "Rome I" proposal was potentially
a very detrimental move for many British consumers who may not
have benefited from the additional modern safeguards which it
is scheduled to introduce. Conversely, a French consumer may well
have decided not to bother with British traders because of the
lack of coherent consumer protection regime; and ditto for consumers
across all the other Member States. Business likewise would be
left in a complicated position dealing with different regimes
dependent on where they are trading.
8. Whilst it is accepted that the initial
decision not to opt into this particular instrument may have been
guided by perceived national interests centring around the so-called
"mandatory rules" and the interests of the City of London,
it is unfortunate and unacceptable that the decision was not made
with greater openness and transparency so that all aspects of
the proposal could have been weighed in the balance. This particularly
bearing in mind that the issue concerning mandatory rules was
solved fairly early on in the discussions, but then many interest
groups in the United Kingdom continued to behave as though we
were still a full player in the process, which was not the case
and definitely perceived in this way by other Member States in
Council. Perhaps the greatest irony was that the concerns of most
interest groups centred around the disputed effects of the proposed
Regulation on the Internal Market.
(ii) Loss of influence and credibility
9. Second, making use of the 1997 Protocol
with a view to opting into an act once the UK's concerns have
been addressed may appear tempting. This is however only part
of the picture. The United Kingdom loses the right to vote in
the Council of Ministers on a measure (although of course British
MEPs retain theirs) and thus considerably weakens its negotiating
position vis-a"-vis other Member States, who remain
bound by the final result. The United Kingdom participates actively
in the negotiations in Council, but all parties know that it is
not bound by the final result. Its European partners are of course
in a different position, having no choice but to apply the act
once it is adopted.[13]
10. This underlying inequality is arguably
not conducive to enhanced trust between Member States, and there
is no reason why the United Kingdom could not deal with its concerns
through the legislative process, rather than from the sidelines,
from where the shrill complaints from some interest groups make
it increasingly unpopular with its partners who become less likely
to take such input seriously. This is definitely not the way to
make friends and influence people in Europe. How many more times
will Member States and future Presidencies make all possible efforts
to render a text as a whole, or even very specific points of it,[14]
satisfactory to the United Kingdom? I would therefore submit that
systematic recourse to the 1997 Protocol is counter-productive,
particularly in the long term.
11. The democracy of such a procedure also
has to be highly questionable, not only in respect of the transparency
of the initial opt-out decision. In addition, if for example,
after having had observer status for several years, the Government
finally decides to opt into an instrument like Rome I after it
is adopted, what kind of message does this send back home? This
really appears to be control by Brussels, with the UK in real
danger of becoming something like the "fax democracies"
of Norway and Iceland, having to merely accept what the rest of
the EU has already decided on.
(iii) An untenable situation for British Members
of the European Parliament
12. Thirdly, British MEPs are put in an
increasingly untenable situation. On the one hand, they are courted
by British ministers and business who wish to influence the final
outcome, but on the other hand, they are essentially making legislation
for others and not, most peculiarly, for the constituents by whom
they are directly elected. It is noteworthy that neither Danish
nor Irish MEPs participate in the work the Legal Affairs Committee
of the European Parliament.[15]
By contrast to the United Kingdom, Denmark possesses a civil law
system and in many respects already has a common system with the
other Nordic countries, so the detriment is potentially not so
great, and indeed it is interesting to note that they are now
contemplating a wholesale opt-in in this area. Where the Irish
have occasionally exercised their opt-out, although not in relation
to civil law, their MEPs decline to vote on the issues in Parliament's
plenary. For the first time, MEPs from other countries have now
started openly questioning why British MEPs should debate and
vote (let alone act as rapporteur) on legislation the United
Kingdom Government has potentially refused by use of the opt-out.
It may well become difficult to resist the logic of this argument.
(iv) "Protecting the common law"
13. Fourthly, I would like to examine an
argument that is often put forward in justifying retention of
the Protocol; that is by doing so we are somehow protecting or
saving the common law from any further encroachment from Europe.
Firstly, surely a legal system should be there to protect the
interests of all of its citizens; to promote and dispense justice
across society as a whole.
14. However, the courts of England and Wales
(especially London) are increasingly being presented as the optional
preserve of wealthy commercial litigators with little or no access
for "small" claimants. The cry of those who wish to
preserve the common law seems mainly to stem from the intention
to provide a "Rolls Royce system" at high cost to parties
from the US or elsewhere. In other words, it is about providing
an "export service" rather than a system of justice.
Our civil courts and legal services have become big business and
some say they literally fear a "European" system that
will return lucrative business to the US courts rather than to
London. Such an argument is unattractive, in that it is a perverted
view of what a justice system should be about, and untrue in the
sense that at present any "European" system is likely
to be an optional "28th" regime which will have to survive
on its own competitive merits vis-a"-vis the US or
any other internal or external domestic system. Furthermore, might
it not be more attractive to promote our courts as part of a European
system?
15. Perhaps more importantly as a country,
we have up until now been in the vanguard of influencing the development
of European law in a manner helpful to the common law, which others
have great respect for. There is increasing evidence of a tendency
on the part of the European Commission to reduce common law participation
in various schemes and partnerships, no doubt on the basis of
our own non-participation and negative attitude to various justice
instruments. This circular negativity can only be destructive
to the very common law influences we seek to protect and nurture
in the longer term. With all respect to both Member States, how
will we feel if the defence of the common law in the EU is left
to Malta and Cyprus?
(v) Lack of democratic accountability
16. Fifthly, opting out, or more accurately
failing to opt in, as happens at present, fosters a culture of
secrecy. Given that the decision is made by just allowing a date
to pass by, there is no public debate or consultation. Only the
most vociferous elements are able to influence government decision-making
behind closed doors. In the event that the Government avails itself
of Article 4 of the 1997 Protocol (ie the ex post opt-in), the
procedure becomes a way of avoiding parliamentary scrutiny of
the EU legislative process, both at national and European level.
This will become increasingly apparent with the additional powers
conferred to national parliaments by the Reform Treaty.[16]
C. CONCLUSION
17. If this is the direction we want to
choose, it means less democracy, less justice, less common law
influence on European law, and a real threat to the Internal Market.
Under those circumstances, the central trading relationship, that
one piece of the European Union that Britain was meant to be keen
on, will be endangered. Open markets have to be balanced by an
effective fully functioning system of justice. At present we are
failing to do this, as the European Parliament's Equitable Life
inquiry highlighted;[17]
there should be no mobility across the Internal Market without
concurrent liability and clear access to justice. At the end of
the day, it will be United Kingdom citizens and enterprises that
loose out when they try to go about their daily lives and work
in Europe's Internal Market. Added to which, as other Member States
increasingly wake up to the impact on their own citizens and the
distortions of competition, they too will be less and less tolerant
of an idiosyncratic British position. Accordingly, the continued
use of the opt-out in relation to justice could be pivotal for
the UK-EU relationship, but not for the reasons relating to criminal
law that have featured prominently in the lead up to the signing
of the Reform Treaty, but rather for those relating to civil law
which are too often overlooked. It is hoped that this submission
will go some small way to correcting that balance.
30 November 2007
1 Article 69 EC; Protocol (No 4) annexed to the EU
and EC Treaties on the position of the United Kingdom and Ireland
(1997), Consolidated Treaties of 29 December 2006, OJ C 321 E/198,
p 198 (hereinafter, "the 1997 Protocol"). The Protocol
became applicable on 1 May 1999, on entry into force of the Amsterdam
Treaty. Available at: http://www.dianawallismep.org.United Kingdom/resources/sites/82.165.40.25-416d2c46d399e8.07328850/Rome%20I/protocol.doc Back
2
Jörg Monar, Wolfgang Wessels, The European Union after the
Treaty of Amsterdam (Continuum, 2001), page 285. Back
3
1997 Protocol, Articles 3(1) and 4 respectively. Back
4
Ibid, Article 3(2). Back
5
Ibid, Article 8. Back
6
See inter alia the Commission's website: http://ec.europa.eu/justice-home/fsj/civil/fsj-civil-intro-en.htm# Back
7
Presidency of the IGC, Draft Treaty amending the Treaty on European
Union and the Treaty establishing the European Community-Protocols,
CIG 2/1/07, 5 October 2007, at page 60 (Horizontal amendment 20). Back
8
The author was Parliament's rapporteur on the "Brussels
I" and "Rome II" Regulations. She also negotiated
the "Rome I" regulation on behalf of her political group,
and drafted an opinion for the Legal Affairs Committee on the
proposal concerning Maintenance Obligations. Back
9
Article written on 25 October 2004 for Statewatch, available at:
http://www.statewatch.org/news/2004/oct/eu-immig-opt-outs.pdf Back
10
COM(2005) 650 final, 2005/0261 (COD); Brussels, 15 December 2005,
COM(2005) 649 final, 2005/0259 (CNS); Proposed Council Regulation
amending Regulation (EC) No 2201/2003 as regards jurisdiction
and introducing rules concerning applicable law in matrimonial
matters. See also: House of Lords 52nd Report of Session 2005-06,
Rome III-choice of law in divorce, HL Paper 272. Back
11
The UK Government, although not having a right of vote in Council,
significantly influenced and participated in the negotiations
leading up to the first reading agreement on Rome I, and has now
signalled that it considers it may opt in to the legislation under
Article 4 of the 1997 Protocol once the Regulation is finally
adopted, subject to consultations at domestic level. Back
12
Article 61(c) refers to Article 65 EC: "(...) in so far as
necessary for the proper functioning of the internal market (...)".
Note that Article III-269 of the Constitutional Treaty and similarly
Article 2(66) of the Reform Treaty delete this condition. Back
13
1997 Protocol, Article 3(1) second indent. Back
14
For instance, to pursue the Rome I example, the question whether
the voluntary assignment or contractual subrogation may be relied
on against third parties (Article 13(3) of the Commission's proposal,
COM(2005) 650 final). Back
15
This is the Committee having responsibility for civil and commercial
issues in the European Parliament. Back
16
See for instance: Protocols 1 and 2 to be annexed to the Treaty
on European Union and to the Treaty on the Functioning of the
European Union; Presidency of the IGC, Draft Treaty amending the
Treaty on European Union and the Treaty establishing the European
Community-Protocols, CIG 2/1/07, 5 October 2007, at pages 3-10. Back
17
The report of the inquiry, as adopted by the European Parliament
in June 2007 and all evidence submitted to it can be accessed
at: http://www.europarl.europa.eu/comparl/tempcom/equi/default-en.htm Back
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