Select Committee on European Scrutiny Fifth Report




Draft Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Legal base: Article 61(c) EC; consultation; unanimity
Department: Lord Chancellor's
Basis of consideration: Minister's letter of 20 December 2000
Previous Committee Report: HC 23-xxix (1999-2000), paragraph 25 (15 November 2000)
Discussed in Council: 30 November 2000
Committee's assessment: Legally important
Committee's decision: Cleared (decision reported on 15 November 2000)


  11.1  In our Report of 15 November 2000 we cleared the proposed Council Regulation on jurisdiction and the recognition and enforcement of judgments. We shared the concern expressed by the Parliamentary Secretary (Mr David Lock) over the conferring of external Community competence in this field, and looked to him to devise ways in which the consequences of this development might be alleviated.

  11.2  Our particular concern was in relation to the participation by the UK in the negotiations conducted within the Hague Conference on Private International Law for a world-wide judgments convention. We were content to clear the proposal on the basis that ways of alleviating the effect of conferring external competence would be actively pursued up to and including the Justice and Home Affairs Council on 30 November. We also asked the Parliamentary Secretary to give us his views as to how far these concerns were met.

The Parliamentary Secretary's letter

  11.3  In his letter of 20 December the Parliamentary Secretary at the Lord Chancellor's Department (Lord Bach) informs us that political agreement was reached on the proposal for a Council Regulation at the Justice and Home Affairs Council on 30 November.

  11.4  The Parliamentary Secretary comments that:

"On the issue of external competence, the Regulation does not permit an individual Member State in future to conclude any further bilateral agreements with non-EU States that judgments given in other Member States against parties based in those non-EU States and grounded on exorbitant bases of jurisdiction[22] shall not be enforced in that State. The United Kingdom tried, and unfortunately failed, to secure an agreement that such a provision, equivalent to Article 59 of the 1968 Brussels Convention,[23] should be available only for the United Kingdom for a fixed period of time. Unlike Article 59, there will therefore be no bilateral flexibility to mitigate the effect of Article 4 which will require the enforcement throughout the EU of judgments given in Member States and based on exorbitant national grounds of jurisdiction.

"The adoption of the Regulation will give rise to external Community competence and you will recall the Government's long-standing concerns about the implications of this development, particularly in relation to the continuing negotiations at the Hague Conference on Private International Law for a world-wide judgments agreement. However unfortunately the Member States failed to give us the support necessary to limit such competence expressly in the Regulation."

  11.5  The Parliamentary Secretary describes these developments as "unwelcome in principle" but says that they have been ameliorated to some extent by a declaration, agreed by the Council and the Commission, which will be attached to the Regulation. The text of the declaration is annexed to the Parliamentary Secretary's letter. With regard to the possibility of concluding agreements with third countries to mitigate the effect of Article 4 requiring the enforcement of judgments based on exorbitant grounds of jurisdiction, the declaration states:

"The Council and the Commission will pay particular attention to the possibility of engaging in negotiations with a view to the conclusion of international agreements that would mitigate the consequences of Chapter III of the Regulation for persons domiciled in third States, in respect of judgments founded on certain national grounds of jurisdiction."

  11.6  In relation to the negotiations at the Hague Conference for a world-wide judgments convention, the declaration sets out an agreed 'working method' as follows:

"—  The Community negotiating directives, laid down in advance by the Council, may be adjusted and added to in the course of negotiations, in the light of developments. To that end, coordination meetings will be held whenever necessary; they will be convened by the Presidency-in-Office of the Council, at the suggestion of a Member State or of the Commission.

"—  The Presidency-in-Office of the Council and the Commission will state the Community positions contained in the negotiating directives; to that end, they may submit drafting proposals. Member States may express their own views, as long as these are not incompatible with the negotiating directives laid down by the Council. They may make suggestions and reply to suggestions submitted by other States in the course of negotiation. Written suggestions from Member States will be forwarded to the Presidency-in-Office of the Council and to the Commission in advance.

"—  Should a serious difficulty arise, owing to a disagreement or to the need to take a new approach which departs from the Community negotiating directives, the matter will be referred to the Council."

  11.7  The Parliamentary Secretary describes the declaration as having the following useful elements:

"—  an indication of the willingness by the Community as a whole to consider concluding Article 59-type agreements in the future; these will be important to the United States and other significant non-EU States negotiating at the Hague and this willingness should constitute an incentive to such States to continue to negotiate seriously in that forum;

"—  a confirmation of the freedom of Member States to conclude bilateral agreements with third states on matters covered by the Regulation where the latter is unaffected by those agreements; this should enable us to continue making agreements under the Foreign Judgments (Reciprocal Enforcement) Act 1933 and the Maintenance Orders (Reciprocal Enforcement) Act 1972; and

"—  on the future conduct of the Hague negotiations, a useful confirmation of the freedom of Member States to express their own views, make proposals and reply to proposals submitted by other States, provided these actions are not inconsistent with a common position agreed in Council and that written proposals are sent in advance to the Presidency and the Commission; this should ensure a valuable degree of flexibility in the application of external Community competence and preserve, at least to some degree, our important pivotal role as mediator between the United States and the rest of the EU."


  11.8  We have already cleared the document, but we thank the Parliamentary Secretary for his informative and helpful letter. We note the terms of the declaration agreed by the Council and the Commission, in particular the agreed 'working method' for the conduct of negotiations at the Hague Conference on Private International Law.

  11.9  We agree with the Parliamentary Secretary that the declaration will alleviate some of the unhelpful effects of conferring external competence on the Community in this field of private international law. It will allow Member States more freedom to contribute their own expertise to the work of the Hague Conference on Private International Law. We agree with the Parliamentary Secretary that it is important in this field to preserve the role of the United Kingdom as a mediator with other substantial common law jurisdictions such as the United States of America. In this respect, the agreed 'working method' appears to provide a useful precedent for other negotiations with third countries in areas of external Community competence.

22  An 'exorbitant' basis of jurisdiction is one which would not generally be recognised under the general principles of private international law common to most States. An example in the United Kingdom is the case where jurisdiction is asserted solely on the basis of service of process on a defendant during his temporary presence in a part of the United Kingdom.  Back

23  The Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended. For a consolidated text see OJ No. C 27, 26.1.1998, p.1. Back

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