Select Committee on European Communities Second Report


28.  JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGEMENTS IN MATRIMONIAL MATTERS AND IN MATTERS OF PARENTAL RESPONSIBILITY FOR JOINT CHILDREN

Letter from Lord Tordoff, Chairman of the Committee, to Keith Vaz MP, Parliamentary Secretary, Lord Chancellor's Department

  Sub-Committee E (Law and Institutions) considered the draft Regulation at its meeting on 10 November. There are three matters on which the Committee would welcome your views.

  The Commission has said that the subject matter of the Regulation, which is largely a replica of the Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters (Brussels II), is "now within the ambit of Article 65 of the Treaty". The legal base proposed is Article 61(c). You appear to doubt the Commission's reasoning. The Committee shares your concern. It would be helpful if you could give the Committee a fuller explanation of the Government's position as regards the appropriate legal base for the Regulation. In the Committee's view no Regulation should be adopted in the absence of a clear and secure legal base.

  Secondly, the conversion of the Convention into a Regulation made under the EC Treaty raises a question relating to the position of the Explanatory Report and the Declarations made at the time of signing the Convention. What will be the position of the Explanatory Report if the Regulation is adopted? Are there any matters in the Report which you believe should be transferred into the recitals and/or articles of the Regulation?

  The Commission proposes that the Declarations should, if Member States concerned wish to press them, be reproduced as Council Minutes statements. The Committee would be grateful if you could explain what status and effect a Council Minutes statement would have, as compared to a Declaration made in relation to a Treaty. Does the Government consider that it is, in principle, sufficient that Declarations are reproduced in Council Minutes statements?

  Finally, the Committee would like to return to the question of the role of the Court of Justice in relation to the matters, in particular parental responsibility orders, the subject of the Convention and now of the proposed Regulation. You will recall the position taken by the Committee in its Report on the Convention (5th Report, 1997-98, at paras 67 and 68). The Committee remains concerned at the possibility of delays before the Court of Justice and recalls that at the time of signing the Convention a declaration was annexed to the Council Minutes to the effect that consideration should be given to ways of reducing the length of proceedings before the Court. Notwithstanding the limited jurisdiction which the Court would be given in relation to the Regulation by Article 68 of the EC Treaty, is there not still a case for looking to see whether the length of proceedings can be reduced? In this context the Committee notes that the Court has recently tabled proposed amendments to its Rules of Procedure. The Committee would welcome your reactions.

  The Committee looks forward to receiving the information requested above. In the meantime the document is retained under scrutiny.

11 November 1999

Letter from David Lock MP, Parliamentary Secretary Lord Chancellor's Department, to Lord Tordoff, Chairman of the Committee

  Your letter of 11 November has been passed to me for reply because I have taken over Keith Vaz's responsibility for international matters at the Lord Chancellor's Department.

  The first issue you raise concerns the treaty base proposed for this draft Regulation. When the Government notified the Finnish Presidency last July that the United Kingdom intended to opt-in to the negotiations on this draft Regulation, it expressed doubts as to whether this proposal properly fell within the scope of Article 65 of the EC Treaty. It was, in particular, felt to be uncertain whether the subject matter of the Regulation satisfied one of the requirements of this provision, namely that it was "necessary for the proper functioning of the internal market".

  Since then legal advice has been sought on this issue from Professor Derrick Wyatt QC. His view is that, on the basis of the Court of Justice's jurisprudence relating to the free movement of persons, the harmonisation envisaged under the proposed Regulation could plausibly be said to contribute to the free movement of persons and thus to affect the proper functioning of the internal market. He further argues that such harmonisation is likely to be accepted by the Court as "necessary" for the proper functioning of the internal market on the basis that the Court has traditionally been reluctant to interfere in the wide discretion exercisable by the Council of Ministers in deciding whether a condition of this kind has been satisfied. In his view, a challenge to the adoption of the proposal on the ground that it was not necessary for the proper functioning of the internal market would fail.

  This Opinion has been considered by the UK Law Officers who agree with it. It has also been considered by me and my colleague, Jim Wallace, the Scottish Minister for Justice, and we also agree that in the light of it a challenge to the proposal on the ground of an inadequate treaty base would be likely to fail and accordingly should not be made.

  One aspect of the treaty base issue still remains to be settled. This concerns the scope of the draft Regulation which, as presently drafted, would apply to non-EU nationals. The Swedish delegation in the Council Working Group has questioned whether the broad scope of the instrument properly falls within Article 65 and whether, in particular, rules governing divorce jurisdiction in relation to non-EU nationals such as two American nationals properly satisfy the condition of necessity for the proper functioning of the internal market. I shall be giving further consideration to this issue in the light of further advice which has been sought from Professor Wyatt. The issue will also be considered in more detail by the Working Group in Brussels next year, and the Council Legal Service will produce an Opinion on it. I shall keep your Committee informed of developments.

  The second matter you raise concerns the position of the Explanatory Report which was attached to the 1998 Convention. This valuable report was drafted by Professor Borras of the University of Barcelona and we are keen to ensure that it remains available as a useful guide to the interception of the Regulation. We are not pressing for any particular aspect of it to be included in the text of the Regulation or in the recitals. However the United Kingdom delegation recently proposed that an additional recital be added to the Regulation; this would simply refer to the report which would thereby be drawn to the attention of the users of the Regulation, but would not be a binding authority on the meaning of the Regulation. This proposal will be discussed by the Brussels Working Group next year. Once again, I shall keep your Committee informed of developments.

  The third matter you raise concerns the proposal from the Commission that the declarations under the earlier Convention should, if the Member States concerned wish to press them, be reproduced as Council minute statements. It seems to be generally agreed that such statements are of little or no legal effect. Of the two Member States concerned, Ireland has indicated that it does not seek any such statement. Italy has proposed, and it has been agreed, that instead of a minute statement an amendment should be made to the text of the Regulation. This would reflect the terms of its earlier declaration, namely that it reserves the right, in respect of judgments by Portuguese ecclesiastical courts, to adopt the procedures and carry out the checks provided for in its own legal system in respect of similar judgments by ecclesiastical courts, on the basis of the agreements it has concluded with the Holy See. Accordingly it has been agreed that Article 42 (Treaties with the Holy See) should be amended to include an appropriate provision.

  Finally, you have raised the question of the role of the Court of Justice in relation to the subject matter of the Regulation. Your Committee remains concerned about the possibility of delays by the Court in disposing of references made to it from national courts on the interpretation of the Regulation. This concern reflects the fact that long delays are particularly undesirable in the context of family proceedings. Your letter correctly points out that the Court's jurisdiction is now governed by Article 68 of the EC Treaty. Under this provision references in respect of Title IV measures can only be made "on a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national laws". For the United Kingdom, this will mean, in practice, that references will only be possible from the House of Lords. In view of this restrictive provision there are unlikely to be a significant number of references to the Court. As far as expediting the handling of such cases in the Court is concerned, the Court has made it clear that, although it is prepared to give priority to particular references in this area on a case by case basis, it is not prepared to do so in advance in respect of all such references. Whilst I accept that this is not an entirely satisfactory outcome, I would draw the Committee's attention to Article 68(3) under which the Council, the Commission or a Member State may request the Court to give rulings on the interpretation of Title IV measures. This will facilitate the making of references in situations where significant problems have arisen in the application of the Regulation. In situations of this kind references will not arise directly out of private litigation and will not therefore cause intolerable delays to the families concerned.

  Your Committee has also noted that the Court has recently tabled proposed amendments to its rules of Procedure. The Government generally supports these proposals, in particular the proposal for an accelerated procedure which would have clear benefits for Brussels II cases. Other proposals are not so directly relevant in the present context.

30 December 1999

Letter from Lord Tordoff, Chairman of the Committee, to David Lock MP, Parliamentary Secretary, Lord Chancellor's Department

  Thank you for your letter of 30 December which Sub-Committee E (Law and Institutions) considered at its meeting on 19 January. The Committee is grateful for the detailed explanations given and for your undertaking to keep the Committee informed of developments.

  The Committee decided to clear the document from scrutiny.

20 January 2000

Letter from David Lock MP, Parliamentary Secretary, Lord Chancellor's Department, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 20 January in which you notified me of your Committee's decision to clear this proposal from scrutiny.

  I am writing to keep you informed about recent developments. The first concerns one aspect of the treaty base issue, namely the application of the draft Regulation to non-EU nationals and whether this satisfies the requirement in Article 65 of the EC Treaty that measures made thereunder are necessary for the proper functioning of the internal market.

  Professor Wyatt QC has advised on this issue and has concluded that the present scope of the Regulation might, in principle, be ultra vires Article 65 to the extent that it covers non-nationals of Member States who are not also members of the families of nationals of Member States. This view has not been supported by the Council Legal Service which rested its opposite conclusion on the general framework and objectives of Title IV of the EC Treaty which aims at the progressive establishment of an area of freedom, security and justice through policies related to the free movement of persons, including third country nationals. The Council Legal Service found it difficult to conceive a coherent, uniform and not unduly complicated body of rules governing civil jurisdiction and the recognition and enforcement of judgments which would be based primarily on the nationality of the parties.

  This has not been an easy issue to resolve, no view of the matter appears to be entirely conclusive. However, for the following reasons the Government has decided to accept the current scope of the Regulation: first, because, as a matter of policy, we would not wish to exclude nationals from third countries from the scope of the Regulation, indeed we agreed to their inclusion within the 1998 Convention, and secondly, that in view of the wide margin of appreciation vested in the Council of Ministers the prospects for a successful challenge on the point in the Court of Justice are not particularly encouraging. These difficulties, together with the likely lack of any significant support on the issue from other Member States in the Council, have led the Government to conclude that this issue should not be pursued further.

  The second concern raised by your Committee related to the future position under the Regulation of the Explanatory Report which was attached to the 1998 Convention. It was unfortunately not possible to get agreement on the inclusion of a new recital which would specifically refer to this report. However, there has been agreement that these should be a clear reference to it in a footnote to one of the recitals; this would include the relevant reference to it in the Official Journal. This should be sufficient to enable users of the Regulation to know of its existence, and where to find it, and therefore to assist in the interpretation of the Regulation.

7 March 2000


 
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