Proposal for a Council Regulation establishing a procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning sectoral matters and covering jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations, and applicable law in matters relating to maintenance obligations

COUNCIL OF THE EUROPEAN UNION

Brussels, 6 April 2009

Interinstitutional File:

2008/0266 (CNS) 8485/09

LIMITE

JUSTCIV 78

NOTE

from : Presidency

to : Coreper

No. prev. doc. : 8199/09 JUSTCIV 71

No. Cion prop. : 5146/09 JUSTCIV 4

Subject : Proposal for a Council Regulation establishing a procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning sectoral matters and covering jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations, and applicable law in matters relating to maintenance obligations

  State of play

1. On 19 December 2008 the Commission submitted a proposal for a Council Regulation establishing a procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning sectoral matters and covering jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations, and applicable law in matters relating to maintenance obligations [1] [2].

2. The European Parliament was consulted on the proposal on 26 January 2009, but has not yet given an opinion.

3. The proposal has been discussed in the Committee on Civil Law Matters (Bilateral Agreements) at a number of meetings during the months of January, February and March 2009. The discussions in the Committee have been conducted in parallel with the discussions on a similar proposal covering the area of applicable law in contractual and non-contractual obligations [3].

4. Good progress has been made on both proposals.

5. Informal contacts have taken place with the European Parliament in order to pave the way for a timely opinion on the proposal.

6. In the light of the discussions at the JHA Counsellors’ meeting on 3 April 2009 the Presidency invites Coreper to take note of the text set out in the Annex [4] which represents the state of play on this proposal.

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ANNEX

2008/0266 (CNS)

Proposal for a

COUNCIL REGULATION

of […]

establishing a procedure for the negotiation and conclusion of agreements (…) concerning (…) jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and applicable law in matters relating to maintenance obligations

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 61(c), 65, 67(2) and 67(5) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament [5],

(....)

Whereas:

(1) Title IVof Part Three of the Treaty establishing the European Community (hereinafter "the EC Treaty") provides the legal basis for the adoption of Community legislation in the field of judicial cooperation in civil matters.

(2) Judicial cooperation in civil matters between Member States and third countries has traditionally been governed by agreements between Member States and third countries.

(3) Article 307 of the EC Treaty requires the Member States to take all appropriate steps to eliminate anyincompatibilities between the Community acquisand international agreements concluded by Member States with third countries. This may involve the need for there-negotiation of such agreements.

(4) There may also be a need for the conclusion of new agreements with third countries governing areas of civil justice that come within the purview of Title IV of Part Threeof the EC Treaty.

(5) The Court of Justice of the European Communitiesconfirmed in its Opinion 1/03 of 7 February 2006 relating to the conclusion of the new Lugano Convention (…) that the Community has acquired exclusive competence to conclude aninternational agreement like the Lugano Convention with third countries on matters affecting the rules (…) in Regulation (EC) No 44/2001 ("Brussels I") [6] (…)on jurisdiction and on recognition and enforcement of judgments in civil and commercial matters.

(6) It is for the Community to conclude,pursuant to Article 300 of the EC Treaty, agreements between the Community and a third country on matters falling within the exclusive competence of the Community.

(7) Article 10 of the EC Treaty requires Member States to facilitate the achievement of the Community’s tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty. This duty of loyal cooperation is of general application and does not depend on whether the Community competence is exclusive or not.

(8) (see Recitals 9 and 11-1)

(9) With regard to agreements with third countries on specific civil justice issues falling within the exclusive competence of the Community,a coherent and transparent procedure should be establishedto authorise a Member State to amend an existing agreement or to negotiate and conclude a new agreement(…), in particular where the Community itself has not indicated its intention to exercise its external competence to conclude an agreement by way of an already existing mandate of negotiation or an envisaged mandate of negotiation. This procedure is without prejudice to the exclusive competence of the Community and the provisions of Articles 300 and 307 of the EC Treaty. (…) It must be regarded as an exceptional measure and must be limited in scope and in time.

(9a) This Regulation should not apply if the Community has already concluded an agreement with the third country or third countries concerned on the same subject matter. Two agreements should be considered to concern the same subject matter only if and to the extent that they regulate in substance the same specific legal issues. Provisions simply stating a general intention to cooperate on such issues should not be considered as concerning the same subject matter.

(10) (deleted)

(11) In order to ensure that an agreement envisaged by a Member State does not render Community law ineffective and does notundermine the proper functioning of the system established by its rules and equally to ensure that it does not undermine the Community’s external relations policy as decided by the Community, the Member State concerned should be required to notify the Commission of its intentions with a view to obtaining an authorisation to open or continue formal negotiations on an agreement as well as to conclude an agreement. Such a notification should be made by letter or by electronic means. It should contain all relevant information and documentationenabling the Commission to assess the expected impact on Community lawof the (…) outcome of the negotiations.

(11-1) It should be assessed whether there is sufficient Community interest in concluding a bilateral agreement between the Community and the third country concerned or, where appropriate, sufficient Community interest in replacing an existing bilateral agreement between a Member State and a third country with a Community agreement.

To that end, all Member States should be informed of any notification received by the Commission concerning an agreement envisaged by a given Member State in order to allow them to demonstrate their interest in joining the initiative of the notifying Member State. If, from this exchange of information, a sufficient Community interest were to emerge, the Commission should consider proposing a negotiating mandate with a view to the conclusion of an agreement between the Community and the third country concerned.

(11-2) Certain regional agreements referred to in existing Community legal acts should be covered by this Regulation.

(11a) When authorising the opening of formal negotiations, the Commission should, where appropriate, be able topropose negotiating guidelines or request the inclusion of particular clauses in the envisaged agreement. The Commission should be kept fully informed throughout the different stages of the negotiations as far as matters falling within the scope of this Regulation are concerned and may be allowed to participate as an observer in relation to those matters.

(11b) When notifying the Commission of their intention to enter into negotiation with a third country Member States need only inform the Commission of elements which are of relevance for the assessment to be made by the Commission. The authorisation by the Commission and any possible negotiating guidelines or, as the case may be, the refusal by the Commission should concern only matters falling within the scope of this Regulation.

(11c) All Member States should be informed of any notification to the Commission concerning envisaged or negotiated agreements and of any reasoned decision by the Commission under this Regulation. Such information should however fully comply with possible confidentiality requirements.

(11c-1) The Commission and the Council should ensure that any information identified as confidential is treated in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. [7]

(11d) In situations where the Commission, on the basis of its assessments, intends not to authorise the opening of formal negotiations or the conclusion of a negotiated agreement, the Commission should, before giving its reasoned decision, give an opinion to the Council. In the case of conclusion of a negotiated agreement the opinion should also be addressed to the European Parliament.

(12) In order to ensure that the negotiated agreement does not constitute an obstacle to the implementation of the Community’s external policy on judicial cooperation in civil and commercial matters, the agreement should provide for eitherits denunciation in part or in full in the event of a subsequent agreement between the Community or the Community and its Member States and the same third country on the same subject matter or for the direct replacement of the relevant provisions by the provisions of such a subsequent agreement.

(13) Provision should be madefor transitional measures to cover situations where, at the time of the entry into force of this Regulation, a Member State is in the process of negotiating with a third country or has concluded the negotiations but not yet expressed its consent to be bound by the agreement.

(14) (deleted)

(15) In accordance with the principle of proportionality, as set out in Article 5 of the EC Treaty, this Regulation does not go beyond what is necessary in order to achieve its objective.

(16) In accordance with Article 3 of the Protocol on the Position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom and Ireland have given notice of their wish to take part in the adoption and application of this Regulation. [8]

(17) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application,

HAS ADOPTED THIS REGULATION:

Article 1

Subject matter and scope

1. This Regulation establishes a procedure to authorise a Member State to amend an existing (…)agreement (…), or to negotiate and conclude a new (…)agreement subject to the conditions laid down in the following provisions.

This procedure is without prejudice to the respective competencies of the Community and its Member States.

2. This Regulation shall apply to (…)agreements concerning (…) matters (…) falling, entirely or partly, within the scope of Regulation (EC) No 2201/2003 [9] and Regulation (EC) No 4/2009 [10], to the extent that those matters fall within the exclusive competence of the Community.

3. This Regulation shall not apply if the Community has already concluded an agreement with the third country or third countries concerned on the same subject matters.

Article 2

Definitions

1. For the purposes of this Regulation, the term "agreement" shall mean:

(a) abilateral agreement between a Member State and a third country;

(b) the regional agreements referred to in Article 59(2)(a) of Regulation (EC) No 2201/2003 and in Article 69(3) of Regulation (EC) No 4/2009.

2. For the purposes of this Regulation, "Member State" shall mean Member States with the exception ofDenmark.

Article 3

Notification to the Commission

1. Where a Member State intends to enter into negotiations (…) in order to amendan existing agreement or to conclude a new agreement falling within the scope of this Regulation, it shall notify the Commission in writing of its intention at the earliest possible moment before the envisaged (…) opening of formal negotiations.

2. The notification shall include, as appropriate, a copy of the existing agreement, the draft agreement or the draft proposal (…), and any other relevant documentation. The Member State shall describe the subject matter of the negotiations and shall specify the issues which are to be addressed in the envisaged agreement, or the provisions of the existing agreement which are to be amended. The Member State may provide any other additional information.

3. (…) [11]

Article 4

Assessment by the Commission

1. Upon receipt of the notification, the Commission shall assess whether the Member State may open formal negotiations.

2. (…) The Commission shall, in making this assessment, first check whether any relevant negotiating mandate with a view to aCommunity agreement with the third country or third countriesconcerned is specifically envisaged within the next 24 months. If this is not the case, the Commission shall assess whether all ofthe following conditions are met:

(a) the Member State concerned has provided information that it has a specific interest in concluding the (…)agreement (…)due to economic, geographic, cultural, historical, social or politicalties between the Member State and the third country concerned;

(b) on the basis of the information transmitted by the Member State,the envisaged agreement appears not to render Community law ineffective and appears not to undermine the proper functioning of the system established by its rules;

(c) the envisaged agreement would not undermine the object and purpose of the Community’s external relations policy as decided by the Community.

3. If the information transmitted by the Member State is not sufficient for the purposes of making the assessment, the Commission may request additional information.

Article 5

Authorisation to open formal negotiations

1. If (…) the envisagedagreement meets the conditions referred to in Article 4(2) (…), the Commission shall authorise the Member State to open formal negotiations on the agreement (…). If necessary, the Commission may propose negotiating guidelines and may request the inclusion of particular clauses in the envisaged agreement.

1a. The agreement shall contain a clause providing for either

(a) full or partialdenunciation of the agreement in the event of a subsequent agreement between (…)the European Community or the Community and its Member States (…)and the same third country or third countries on the same subject matter, or

(b) direct replacement of the relevant provisions of the agreement by provisions of a subsequent agreement between the European Community or the Community and its Member States and the third country or the third countries on the same subject matter.

The clause referred to in subparagraph (a) should be worded along the following lines:"(the name of the Member State) shall denounce this agreement in part or in full if and when the European Community or the Community and its Member States conclude an agreement with (the name of the third country or third countries) on the same matters of civil justice as those governed by this agreement".

The clause referred to in subparagraph (b) should be worded along the following lines: "The agreement/provisions (specify) shall cease to be applicable on the day an agreement between the European Community or the Community and its Member States and (the name of the third country or third countries) has entered into force in respect of the matters governed by the latter agreement/provisions".

2. (…) [12]

3. (…) [13]

The Commission shall give a reasoneddecision on the application of the Member State within 90 days of receipt of the notificationreferred to in Article 3(…).

Article 5a

Refusal to authorise the opening of formal negotiations

1. If, on the basis of its assessment under Article 4, the Commission intends not to authorise the opening of formal negotiations on the envisaged agreement, it shall give an opinion to the Council within 90 days of receipt of the notification referred to in Article 3.

2. Within 30 days of the submission of the opinion of the Commission the Member State concerned may request that a debate on the matter be held within the Council at the earliest possible moment.

In the event of such a request, the Commission shall give a reasoned decision on the application of the Member State within 30 days of the debate within the Council.

3. If the Member State concerned does not request a debate within the Council within the time limit referred to in paragraph 2 the Commission shall give a reasoned decision on the application of the Member State within 130 days of receipt of the notification referred to in Article 3.

Article 6

Participation of the Commission in the negotiations

The Commission may participate as an observer in the negotiations between the Member State and the third countryas far as matters falling within the scope of this Regulation are concerned. If the Commission does not participate as an observer, it shall be kept informed of the progress and results throughout the different stages of thenegotiations.

Article 7

Authorisation to conclude the agreement

1. Before signing the negotiated agreement, the Member State concerned shall notifythe outcome of thenegotiations to the Commission and transmit the text of the agreement (…).

2. Upon receipt of thisnotification the Commission shall assess whether (…) the negotiated agreement

(a) meets the conditions referred to in Article 4(2)(b);

(b) meets the condition referred to in Article 4(2)(c), insofar as there are new and exceptional circumstances in relation to that condition; and

(c) fulfils the requirement under Article 5(1a) (…).

3. (…) [14]

4. If the (…) negotiations have resulted in an agreement which fulfils the requirements referred to in paragraph 2, the Member State shall be authorised by the Commissionto conclude the agreement.

5. (…) [15]

The Commission shall give a reasoneddecision on the application of the Member State within 90 days of receipt of the notification referred to in paragraph 1.

Article 7a

Refusal to authorise the conclusion of the agreement

1. If, on the basis of its assessment under Article 7(2), the Commission intends not to authorise the conclusion of the negotiated agreement, it shall give an opinion to the Council and to the European Parliament within 90 days of receipt of the notification referred to in Article 7(1).

2. Within 30 days of the submission of the opinion of the Commission the Member State concerned may request that a debate on the matter be held within the Council at the earliest possible moment.

In the event of such a request, the Commission shall give a reasoned decision on the application of the Member State within 30 days of the debate within the Council.

4. If the Member State concerned does not request a debate within the Council within the time limit referred to in paragraph 2 the Commission shall give a reasoned decision on the application of the Member State within 130 days of receipt of the notification referred to in Article 7(1).

5. The Commission shall notify its decision to the Council and to the European Parliament within 30 days of the decision.

Article 8

Committee procedure

(deleted) [16]

Article 8x

Information to the Member States

The Commission shall send to the Member States the notifications received under Articles 3 and 7 and, if necessary, the accompanying documents, as well as all its reasoned decisions under Articles 5, 5a, 7 and 7a, subject to the requirements of confidentiality.

Article 8a

Confidentiality

1. When transmitting information to the Commission under Articles 3, 4(3) and 7, the Member State may indicate if any of the information is to be considered confidential and if the information transmitted can be shared with other Member States.

2. (…) [17]

Article 9

Transitional provisions

1. Where a Member State has already started negotiating an agreement at the time of entry into force of this Regulation, Article 3(1) and (2) and Articles 4 to 7a shall apply.

Where the stage of the negotiations so permits, the Commission may propose negotiating guidelines or requestthe inclusion of particular clauses, as referred to in Article 5(1)and (1a).

2. Where a Member State has already completed negotiations at the time of entry into force of this Regulation, without having concluded the agreement, Article3(1) and (2), Article 7(2) to (5)and Article 7a shall apply.

Article 10

Review

1. No earlier than 8 years after the date of adoption of this Regulation the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation and on the possible extension of its scope.

2. This report shall either

(a) confirm that it is appropriate for this Regulation to expire on the date determined in accordance with Article 10a(1), or

(b) recommend that this Regulation be replaced as of that date by a Regulation with the same scope or by a Regulation with an extended scope.

3. If this report recommends a replacement of the Regulation as set out in paragraph 2(b), it shall be accompanied by an appropriate legislative proposal.

Article 10a

Expiry

1. This Regulation shall expire 4 years after the submission by the Commission of the report referred to in Article 10.

The exact date of expiry shall be the first day of the month following the last submission of the report to either the European Parliament or the Council.

2. Notwithstanding the expiry of this Regulation on the date determined in accordance with paragraph 1, all negotiations ongoing on that date which have been entered into by a Member State under this Regulation with a view to amending an existing agreement or to negotiating and concluding a new agreement shall be allowed to continue and to be completed on the conditions laid down in this Regulation.

Article 11

Entry into force

This Regulation shall enter into force on the twentieth day following (…) its publication in the Official Journal of the European Union.

(…) [18]

This Regulation shall be binding in its entirety and directly applicable in theMember States in accordance with the Treaty establishing the European Community.

Done at,

For the Council

The President