REPORT on the 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
16.4.2009 - (COM(2008)0894 – C6‑0035/2009 – 2008/0266(CNS)) - *
Committee on Civil Liberties, Justice and Home Affairs
Rapporteur: Gérard Deprez
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
on the 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
(COM(2008)0894 – C6‑0035/2009 – 2008/0266(CNS))
(Consultation procedure)
The European Parliament,
– having regard to the Commission proposal to the Council (COM(2008)0894),
– having regard to Articles 61(c), 65, 67(2) and 67(5) of the EC Treaty, pursuant to which the Council consulted Parliament (C6‑0035/2009),
– having regard to Rule 51 of its Rules of Procedure,
– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Legal Affairs (A6‑0265/2009),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;
3. Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;
4. Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;
5. Instructs its President to forward its position to the Council and Commission.
Amendment 1 Proposal for a regulation Title | |
|
Text proposed by the Commission |
Amendment |
|
Proposal for a Council Regulation of […] 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 |
Proposal for a Council Regulation establishing a procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries 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 |
|
|
(This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.) |
Amendment 2 Proposal for a regulation Recital 2 | |
|
Text proposed by the Commission |
Amendment |
|
(2) Judicial cooperation in civil matters between Member States and third countries has traditionally been governed by agreements between Member States and third countries. |
(2) Judicial cooperation in civil matters between Member States and third countries has traditionally been governed by agreements between Member States and third countries. Such bilateral agreements relating to family law matters, of which there are a large number, very often reflect historical links between the Member State in question and a particular third country or countries. They respond to a manifest need on the part of citizens in both the Member State and the third country concerned. |
Amendment 3 Proposal for a regulation Recital 4 | |
|
Text proposed by the Commission |
Amendment |
|
(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 the EC Treaty. |
(4) There is a manifest need for the conclusion of new agreements with third countries relating to family law matters that come within the purview of Title IV of the EC Treaty given, in particular, that many existing bilateral agreements do not reflect present circumstances or require modernisation. |
Amendment 4 Proposal for a regulation Recital 8 | |
|
Text proposed by the Commission |
Amendment |
|
(8) An assessment is needed of whether there currently exists sufficient Community interest in replacing all existing or proposed bilateral agreements between Member States and third countries with Community agreements. Consequently, it is necessary to establish a procedure with a twofold purpose. The first is to allow the Community to assess whether there is such sufficient Community interest in the conclusion of a particular bilateral agreement. The second is to authorise Member States to conclude the agreement at issue if there is no current Community interest in the conclusion of such an agreement. |
(8) An assessment is needed of whether there exists sufficient Community interest in replacing all existing or proposed bilateral agreements between Member States and third countries with Community agreements. The Commission should assess whether there is a Community interest in the conclusion of an agreement between the Community and a third country. If this is not the case Member States should be authorised to conclude the agreement at issue. |
Amendment 5 Proposal for a regulation Recital 9 | |
|
Text proposed by the Commission |
Amendment |
|
(9) A coherent and transparent procedure should be established to authorise Member States to amend existing agreements with third countries or to negotiate and conclude new agreements in exceptional circumstances, in particular where the Community itself has not indicated its intention to exercise its external competences to conclude the agreement. This procedure is without prejudice to the exclusive competence of the Community and the provisions of Articles 300 and 307 of the EC Treaty. Because it derogates from the rule that the Community is exclusively competent to conclude international agreements on these matters, the proposed procedure must be regarded as an exceptional measure and must be limited in scope and in time. |
(9) This Regulation should lay down specific criteria and conditions for the procedure authorising Member States to amend existing agreements with third countries or to negotiate and conclude new agreements in exceptional circumstances, in particular where the Community itself has not indicated its intention to exercise its external competences to conclude the agreement. This procedure is without prejudice to the exclusive competence of the Community and the provisions of Articles 300 and 307 of the Treaty. |
Amendment 6 Proposal for a regulation Recital 9 a (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
(9a) Such criteria and conditions should ensure a balance between, on the one hand, the Community interest, and on the other hand the specific interest of the Member State concerned and should not render Community law ineffective or undermine the proper functioning of the system established by its rules. |
Amendment 7 Proposal for a regulation Recital 9 b (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
(9b) As the procedure constitutes a derogation from the rules on the exclusive competence of the Community to conclude international agreements in the area of judicial cooperation in civil and commercial matters, it must be regarded as an exceptional measure and should therefore be limited both in scope and in time. |
Amendment 8 Proposal for a regulation Recital 9 c (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
(9c) The Commission should establish a strategy and define priorities with a view to developing the Community’s external relations in the area of judicial cooperation in civil and commercial law, in accordance with guidelines that the European Council may adopt in the future. |
Amendment 9 Proposal for a regulation Recital 10 | |
|
Text proposed by the Commission |
Amendment |
|
(10) The present Regulation should be limited to agreements concerning sectoral matters related to the fields of jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations and to the applicable law in matters relating to maintenance obligations. |
(10) This Regulation should be limited to agreements concerning matters related to the fields of jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations and to the applicable law in matters relating to maintenance obligations. |
Amendment 10 Proposal for a regulation Recital 11 | |
|
Text proposed by the Commission |
Amendment |
|
(11) In order to ensure that an agreement proposed by a Member State does not render Community law ineffective and undermine the proper functioning of the system established by its rules, authorisation should be required both in order to start or continue negotiations and to conclude an agreement. This will enable the Commission to assess the expected impact of the (possible) outcome of negotiations on Community law. In relevant cases, the Commission can propose negotiating guidelines or request the inclusion of particular clauses in the proposed agreements. |
(11) In order to ensure that an agreement proposed by a Member State does not render Community law ineffective and undermine the proper functioning of the system established by its rules, authorisation should be required both in order to start or continue negotiations and to conclude an agreement. This will enable the Commission to assess the expected impact of the (possible) outcome of negotiations on Community law. The Commission can propose negotiation guidelines or request the inclusion of particular clauses in the proposed agreements. |
Amendment 11 Proposal for a regulation Recital 14 | |
|
Text proposed by the Commission |
Amendment |
|
(14) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission. |
deleted |
Amendment 12 Proposal for a regulation Article 1 – paragraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
1. This Regulation establishes a procedure to authorise a Member State to amend an existing bilateral agreement between that Member State and a third country, or to negotiate and conclude a new bilateral agreement subject to the conditions laid down in the following provisions. |
1. This Regulation establishes a procedure to authorise a Member State to amend a bilateral agreement between that Member State and a third country, or to negotiate and conclude a new bilateral agreement subject to the conditions laid down in the following provisions. |
Amendment 13 Proposal for a regulation Article 1 – paragraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
2. This Regulation shall apply to bilateral agreements between Member States and third countries concerning sectoral matters and covering jurisdiction, recognition and enforcement of judgements and decisions in matrimonial matters, parental responsibility and maintenance obligations and applicable law in matters relating to maintenance obligations. |
2. This Regulation shall apply to bilateral agreements between Member States and third countries concerning matters falling wholly or partly within the scope of Regulation (EC) No 2201/20031 and Regulation (EC) No 4/20092. |
|
|
1 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2001 (OJ L 338, 23.12.2003, p. 1). |
|
|
2 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L 7, 10.1.2009, p. 1). |
Amendment 14 Proposal for a regulation Article 2 – paragraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
2. For the purposes of this Regulation, “Member State” shall mean any Member State other than Denmark. |
2. For the purposes of this Regulation, “Member State” shall mean any Member State with the exception of Denmark. |
Amendment 15 Proposal for a regulation Article 3 – paragraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
1. Where a Member State intends to enter into negotiations with a third country to amend an existing agreement or to conclude a new agreement falling within the scope of this Regulation, it shall notify the Commission of its intention in writing. |
1. Where a Member State intends to enter into negotiations with a third country to amend an existing agreement or to conclude a new agreement falling within the scope of this Regulation, it shall notify the Commission of its application by letter or by electronic means. |
Amendment 16 Proposal for a regulation Article 3 – paragraph 3 | |
|
Text proposed by the Commission |
Amendment |
|
3. The notification shall be made at least three months before formal negotiations are scheduled to commence with the third country concerned. |
3. The Commission shall make the notification and the accompanying documentation available to the European Parliament and the Council, subject to any requirements of confidentiality. |
Amendment 17 Proposal for a regulation Article 4 – paragraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
1. Upon notification, the Commission shall make an assessment as to whether the Member State can pursue negotiations with the third country concerned. If the Community has already concluded any agreement with the third country concerned on the same subject matters, the application of the Member State will be automatically rejected by the Commission. |
1. After receipt of the notification, the Commission shall make an assessment as to whether the Member State can pursue negotiations with the third country concerned, duly taking into account that derogations from the Community’s exclusive external competence should remain exceptional and limited both in scope and in time. If the Community has already concluded any agreement with the third country concerned on the same subject matters, the application of the Member State will be automatically rejected by the Commission. |
Amendment 18 Proposal for a regulation Article 4 – paragraph 1 a (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
1a. The application of the Member State shall also be rejected by the Commission if: |
|
|
(a) the Community has already concluded an agreement with the third country or third countries concerned on the same subject matter, or |
|
|
(b) the proposed agreement does not fall within the scope of this Regulation. |
Amendment 19 Proposal for a regulation Article 4 – paragraph 1 b (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
1b. If the Commission considers that there is a Community interest in concluding an agreement between the Community and a third country, it shall also reject the application. |
Amendment 20 Proposal for a regulation Article 4 – paragraph 1 c (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
1c. A Community interest shall be deemed to exist: |
|
|
(a) if five or more Member States have concluded, or intend to conclude, an agreement falling within the scope of this Regulation, with the same third country and on the same subject matter; |
|
|
(b) if the European Parliament or the Council send a communication to that effect to the Commission within three months of receipt of a notification. |
Amendment 21 Proposal for a regulation Article 4 – paragraph 2 — introductory part | |
|
Text proposed by the Commission |
Amendment |
|
2. If the Community has not yet concluded an agreement with the third country concerned, the Commission shall in making its assessment first check whether any relevant Community agreement with the third country concerned is expected in the near future. If this is not the case, the Commission may grant authorisation, provided that the following two conditions are met: |
2. If there is no Community interest and if there is no agreement with the third country concerned, the Commission shall in making its assessment check whether any relevant Community agreement with the third country concerned is specifically envisaged within the following two years. If this is not the case, the Commission shall check that the following four conditions are met: |
Amendment 22 Proposal for a regulation Article 4 – paragraph 2 – point a | |
|
Text proposed by the Commission |
Amendment |
|
(a) the Member State concerned has demonstrated that there is a specific interest in concluding the bilateral sectoral agreement with the third country, related in particular to the existence of economic, geographic, cultural or historical ties between the Member State and that third country; and |
(a) the Member State concerned has demonstrated that it has a specific interest in concluding the bilateral agreement with the third country, related in particular to economic, geographic, cultural or historical ties between the Member State and that third country; |
Amendment 23 Proposal for a regulation Article 4 – paragraph 2 – point b | |
|
Text proposed by the Commission |
Amendment |
|
(b) the Commission determines that the proposed agreement is of limited impact on the uniform and consistent application of the Community rules in place and on the proper functioning of the system established by those rules. |
(b) the proposed agreement does not have a significant impact on the uniform and consistent application of the Community rules in place; |
Amendment 24 Proposal for a regulation Article 4 – paragraph 2 – point b a (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
(ba) the conclusion of the proposed agreement would not render Community law ineffective or undermine the proper functioning of the system established by the Community rules; and |
Amendment 25 Proposal for a regulation Article 4 – paragraph 2 – point b b (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
(bb) the envisaged agreement would not harm the object and purpose of the Community’s external relations policy. |
Amendment 26 Proposal for a regulation Article 4 – paragraph 2 a (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
2a. If the information transmitted by the Member State is not sufficient for the purposes of making the assessment, the Commission may request additional information. |
Amendment 27 Proposal for a regulation Article 5 – paragraph 1 – subparagraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
1. If the Commission concludes that there are no obstacles to the agreement in the light of the conditions referred to in Article 4, it may authorise a Member State to open negotiations on the agreement with the third country concerned. If necessary, the Commission may propose negotiating guidelines and can request the inclusion of particular clauses in the proposed agreement. |
1. If the conditions referred to in Article 4(2) are met, the Commission shall authorise the Member State to open negotiations on the agreement with the third country concerned. If necessary, the Commission may propose negotiating guidelines and can request the inclusion of particular clauses in the proposed agreement. |
Amendment 28 Proposal for a regulation Article 5 – paragraph 1 – subparagraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
The agreement shall provide for the clause on its denunciation in the event that the Community concludes an agreement with the same third country on the same subject matter. The agreement shall include the following clause: “(the name of Member State) will denounce the agreement when the European Community concludes an agreement with (the name of the third country) on the same subject matters of civil justice as governed by the present agreement”. |
The agreement shall contain a clause providing for full or partial denunciation of the agreement in the event of a subsequent agreement between the Community or the Community and its Member States and the same third country or third countries on the same subject matter. That clause shall be worded taking into account the following guidelines: “(the name of the Member State) shall denounce this agreement in part or in full if and when the Community or the Community and its Member States conclude an agreement with (the name of the third country or third countries) on the same subject matters of civil justice as those governed by this agreement”. |
Amendment 29 Proposal for a regulation Article 5 – paragraph 3 – subparagraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
3. The Commission shall take a decision on the authorisation referred to in paragraphs 1 and 2 in accordance with the procedure referred to in Article 8(2). |
deleted |
Amendment 30 Proposal for a regulation Article 5 – paragraph 3 – subparagraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
The Commission shall give its decision on the application of the Member State within six months of receipt of the notification referred to in Article 3. |
The Commission shall give its reasoned decision on the application of the Member State within six months of receipt of the notification referred to in Article 3. |
Amendment 31 Proposal for a regulation Article 5 – paragraph 3 a (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
3a. The Commission shall notify its decision to the European Parliament and the Council within one month of taking it. |
Amendment 32 Proposal for a regulation Article 7 – paragraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
1. Before initialling the agreement, the Member State concerned shall notify the Commission of the outcome of negotiations and shall transmit the text of the agreement to the Commission. |
1. Before signing the negotiated agreement, the Member State concerned shall notify the outcome of the negotiations to the Commission and transmit the text of the agreement to the Commission. |
Amendment 33 Proposal for a regulation Article 7 – paragraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
2. Upon notification the Commission shall make an assessment as to whether the negotiated agreement complies with its initial assessment. In making this further assessment the Commission must examine whether the proposed agreement includes the requirements made by the Commission, in particular as regards the inclusion of clauses referred to in Article 5(1) and whether the conclusion of the proposed agreement would render the Community law ineffective and would undermine the proper functioning of the system established by its rules. |
2. After receipt of the notification the Commission shall make an assessment as to whether the negotiated agreement complies with its initial assessment. In making this further assessment the Commission must examine whether the proposed agreement includes the requirements made by the Commission, in particular as regards the inclusion of clauses referred to in Article 5(1) and whether the conclusion of the proposed agreement has no Community interest or would render the Community law ineffective and undermine the proper functioning of the system established by its rules. |
Amendment 34 Proposal for a regulation Article 7 – paragraph 4 | |
|
Text proposed by the Commission |
Amendment |
|
4. If the Commission takes the view that the negotiations have resulted in an agreement which fulfils the requirements referred to in paragraph 2, the Member State may be authorised to conclude the agreement. |
4. If the Commission takes the view that the negotiations have resulted in an agreement which fulfils all the requirements referred to in paragraph 2, the Member State shall be authorised to conclude the agreement. |
Amendment 35 Proposal for a regulation Article 7 – paragraph 5 – subparagraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
5. The Commission shall take a decision on the authorisation referred to in paragraphs 3 and 4 in accordance with the procedure referred to in Article 8(3). |
deleted |
Amendment 36 Proposal for a regulation Article 7 – paragraph 5– subparagraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
The Commission shall give its decision on the application of the Member State within six month of receipt of the notification referred to in paragraph 1. |
The Commission shall give its reasoned decision on the application of the Member State within six months of receipt of the notification referred to in paragraph 1. |
Amendment 37 Proposal for a regulation Article 7 – paragraph 5 a (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
5a. The Commission shall notify its decision to the European Parliament and the Council within one month of taking it. |
Amendment 38 Proposal for a regulation Article 8 | |
|
Text proposed by the Commission |
Amendment |
|
Article 8 Committee procedure |
deleted |
|
1. The Commission shall be assisted by a committee. |
|
|
2. Where reference is made to this paragraph, the advisory procedure laid down in Article 3 of Decision 1999/468/EC shall apply, in compliance with Article 7 thereof. |
|
|
3. Where reference is made to this paragraph, the management procedure laid down in Article 4 of Decision 1999/468/EC shall apply, in compliance with Article 7 thereof. |
|
|
4. The period provided for in Article 4(3) of Decision 1999/468/EC shall be three months. |
|
Amendment 39 Proposal for a regulation Article 8 a (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
Article 8a |
|
|
Confidentiality |
|
|
1. In notifying the Commission of negotiations and their outcome as provided for in Articles 3 and 7, Member States shall clearly indicate to the Commission whether any information therein is to be considered confidential and whether it may be shared with other Member States. |
|
|
2. The Commission and Member States shall ensure that any information identified as confidential is treated in accordance with Article 4(1)(a) of 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 documents1. |
|
|
1 OJ L 145, 31.5.2001, p. 43. |
Amendment 40 Proposal for a regulation Article 8 b (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
Article 8b Publication of notifications 1. The Commission shall transmit notifications under Article 3 to the European Parliament and the Council, and make them publicly available. |
|
|
2. Member States shall notify the Commission of all agreements as defined in Article 2 falling within the scope of this Regulation. The Commission shall transmit these notifications to the European Parliament and the Council, and make them publicly available. |
Amendment 41 Proposal for a regulation Article 9 – paragraph 1 – subparagraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
Where the stage of the negotiations so permits, the Commission may propose negotiating guidelines or the inclusion of particular clauses, as referred to in Article 5(1). |
Where the stage of the negotiations so permits, the Commission may propose guidelines or request the inclusion of particular clauses, as referred to in Article 5(1). |
Amendment 42 Proposal for a regulation Article 11 – paragraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
It shall apply until 31 December 2014. |
It shall apply until 31 December 2014, except in respect of agreements in the process of being negotiated for which the Commission has authorised the opening of negotiations pursuant to Article 5(1) but which have not yet been finalised. |
EXPLANATORY STATEMENT
Context
This Regulation establishes a procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations. According to Article 307 of the Treaty, Member States are required to eliminate any incompatibility between the Community acquis and the international agreement concluded by that Member State and the third country.
The European Court of Justice confirmed in its Opinion 1/03 of 7 February 2006 (Lugano) that the Community has acquired exclusive external competences to negotiate and conclude international agreements with third countries on a number of important matters as referred to in Title IV of the Treaty.
Therefore, it is the Community which, on the basis of Article 300 of the Treaty, is competent to conclude such agreements between the Community and a third country. It should therefore be assessed whether there exists sufficient interest in replacing all existing or proposed bilateral agreements between Member States and third countries with Community agreements. That is the reason why this procedure is established. If there is no community interest, Member States should be authorised to conclude the agreements.
Analysis by the rapporteur
The rapporteur would like to underline, however, that, as this procedure departs from the rule that it is the Community which concludes an agreement, the procedure to authorise Member States should be subject to very precise conditions. The mechanism should be limited in scope and time. It cannot be applied when the Community has a sufficient interest in concluding a specific agreement with a third country and should not undermine the proper functioning of the system established by the Community rules. The rapporteur esteems it crucial that for the sake of coherence, the Commission should establish a strategy and define priorities with a view to developing a Community policy on external relations in the area of judicial cooperation in civil and commercial law. On the proposed comitology procedure, the rapporteur thinks it is not appropriate and he therefore proposes to delete those references. It is the Commission's competence as 'gardienne du traité' to ensure that Community law is respected. This competence is conferred upon it by the Treaty and does therefore not concern a case of implementing powers (as foreseen in article 202 of the Treaty). Instead, the rapporteur proposes a system of notification (AM 26), as is also stipulated in Regulation 1931/2006 of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention. The Regulation should be limited in time and applicable until 2014 (apart from the agreements which are currently negotiated and for which the Commission has given the authorisation to start negotiations).
OPINION of the Committee on Legal Affairs (2.4.2009)
for the Committee on Civil Liberties, Justice and Home Affairs
on the proposal for a Council regulation on 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
(COM(2008)0894 – C6‑0035/2009 – 2008/0266(CNS))
Rapporteur: Tadeusz Zwiefka
SHORT JUSTIFICATION
The rapporteur’s reasons for proposing the amendments set out below correspond largely with those set out in his draft report on the proposal for a regulation establishing a procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning sectoral matters and covering applicable law in contractual and non-contractual obligations[1]. It must be borne in mind, however, that there is no question of the Community's having exclusive competence in the area covered by this proposal for a regulation.
In addition, this proposal falls to be dealt with under the consultation procedure. Given that it needs to be closely aligned with the other proposed regulation on bilateral agreements covering applicable law in contractual and non-contractual obligations, to which the codecision procedure applies, your rapporteur intends to work extremely closely with the rapporteur for the Committee on Civil Liberties, Justice and Home Affairs, which has the main responsibility for this file.
AMENDMENTS
The Committee on Legal Affairs calls on the Committee on Civil Liberties, Justice and Home Affairs, as the committee responsible, to incorporate the following amendments in its report:
Amendment 1 Proposal for a regulation Title | |
|
Text proposed by the Commission |
Amendment |
|
Proposal for a Council Regulation of […] 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 |
Proposal for a Council Regulation establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries 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 |
Amendment 2 Proposal for a regulation Recital 2 | |
|
Text proposed by the Commission |
Amendment |
|
(2) Judicial cooperation in civil matters between Member States and third countries has traditionally been governed by agreements between Member States and third countries. |
(2) Judicial cooperation in civil matters between Member States and third countries has traditionally been governed by agreements between Member States and third countries. Such bilateral agreements relating to family-law matters, of which there are a large number, very often reflect historical links between the Member State in question and a particular third country or countries. They respond to a manifest need on the part of citizens in both the Member State and the third country concerned. |
Amendment 3 Proposal for a regulation Recital 4 | |
|
Text proposed by the Commission |
Amendment |
|
(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 the EC Treaty. |
(4) There is a manifest need for the conclusion of new agreements with third countries relating to family-law matters that come within the purview of Title IV of the EC Treaty given, in particular, that many existing bilateral agreements do not reflect present circumstances or require modernisation. |
Amendment 4 Proposal for a regulation Recital 8 | |
|
Text proposed by the Commission |
Amendment |
|
(8) An assessment is needed of whether there currently exists sufficient Community interest in replacing all existing or proposed bilateral agreements between Member States and third countries with Community agreements. Consequently, it is necessary to establish a procedure with a twofold purpose. The first is to allow the Community to assess whether there is such sufficient Community interest in the conclusion of a particular bilateral agreement. The second is to authorise Member States to conclude the agreement at issue if there is no current Community interest in the conclusion of such an agreement. |
(8) On the one hand, an assessment is needed of whether there exists sufficient Community interest in replacing all existing or proposed bilateral agreements between Member States and third countries with Community agreements. On the other hand, in view of the potential number of bilateral agreements which will have to be concluded, the Community does not always have the resources to conclude such agreements directly. Consequently, it is necessary, in accordance with the principles laid down in Article 10 of the EC Treaty and the principle of sincere cooperation, for its institutions and the Member States to cooperate with a view to enabling the latter to amend existing agreements and, where necessary, to conclude new agreements in a manner consistent and in accordance with the Community's interest. It is therefore appropriate to establish a procedure with a twofold purpose. The first is to allow the Community to assess whether there is such sufficient Community interest in the conclusion of a particular bilateral agreement. The second is to authorise Member States to conclude the agreement at issue if there is no present Community interest in the conclusion of such an agreement. This approach is consonant with the usual Community practice whereby it is for Member States to execute Community law. |
Amendment 5 Proposal for a regulation Recital 9 | |
|
Text proposed by the Commission |
Amendment |
|
(9) A coherent and transparent procedure should be established to authorise Member States to amend existing agreements with third countries or to negotiate and conclude new agreements in exceptional circumstances, in particular where the Community itself has not indicated its intention to exercise its external competences to conclude the agreement. This procedure is without prejudice to the exclusive competence of the Community and the provisions of Articles 300 and 307 of the EC Treaty. Because it derogates from the rule that the Community is exclusively competent to conclude international agreements on these matters, the proposed procedure must be regarded as an exceptional measure and must be limited in scope and in time. |
(9) A coherent and transparent procedure should be established to authorise Member States to amend existing agreements with third countries or to negotiate and conclude new agreements in exceptional circumstances, in particular where the Community itself has not indicated its intention to exercise its external competences to conclude the agreement. This procedure is without prejudice to the exclusive competence of the Community and the provisions of Articles 300 and 307 of the EC Treaty. Because it derogates from the rule that the Community is exclusively competent to conclude international agreements on these matters, the proposed procedure must be regarded as an exceptional measure and must be limited in scope. |
Justification | |
This amendment is necessary as a result of the deletion of the second paragraph of Article 11. | |
Amendment 6 Proposal for a regulation Recital 9 a (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
(9a) The mechanism in question should also cover closed regional agreements between a limited number of Member States, that is, two or three, and one or more third countries. |
Amendment 7 Proposal for a regulation Recital 10 | |
|
Text proposed by the Commission |
Amendment |
|
(10) The present Regulation should be limited to agreements concerning sectoral matters related to the fields of jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations and to the applicable law in matters relating to maintenance obligations. |
(10) The present Regulation should be limited to agreements concerning matters related to the fields of jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations and to the applicable law in matters relating to maintenance obligations. |
Justification | |
The limitation of the Regulation to agreements relating to “sectoral matters” is too restrictive and legally unjustified. The deletion of this expression should apply throughout the Regulation. | |
Amendment 8 Proposal for a regulation Recital 14 | |
|
Text proposed by the Commission |
Amendment |
|
(14) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission. |
deleted |
Amendment 9 Proposal for a regulation Article 1 – paragraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
2. This Regulation shall apply to bilateral agreements between Member States and third countries concerning sectoral matters and covering jurisdiction, recognition and enforcement of judgements and decisions in matrimonial matters, parental responsibility and maintenance obligations and applicable law in matters relating to maintenance obligations. |
2. This Regulation shall apply to bilateral agreements between Member States and third countries and closed regional agreements concerning matters falling, entirely or partly, within the scope of Regulation (EC) No 2201/20031 and Regulation (EC) No 4/20092. |
|
|
1 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2001, OJ L 338, 23.12.2003. |
|
|
2 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 7, 10.1.2009. |
Amendment 10 Proposal for a regulation Article 2 – paragraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
1. For the purposes of this Regulation, the term “agreement” shall be understood as meaning bilateral agreement between a Member State and a third country. |
1. For the purposes of this Regulation, the term “agreement” shall mean: |
|
|
(a) a bilateral agreement between a Member State and a third country; or |
|
|
(b) a closed regional agreement between a limited number of Member States and third countries bordering the European Union. |
Amendment 11 Proposal for a regulation Article 2 – paragraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
2. For the purposes of this Regulation, “Member State” shall mean any Member State other than Denmark. |
2. For the purposes of this Regulation, “Member State” shall mean any Member State with the exception of Denmark. |
Amendment 12 Proposal for a regulation Article 3 – paragraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
1. Where a Member State intends to enter negotiations with a third country to amend an existing agreement, or to conclude a new agreement falling within the scope of this Regulation, it shall notify the Commission of its intention in writing. |
1. Where a Member State intends to enter into negotiations with a third country to amend an existing agreement, or to conclude a new agreement falling within the scope of this Regulation, it shall notify the Commission of its application by letter or by electronic means. |
Justification | |
It is necessary to rectify the inconsistency with the second subparagraph of Article 5(3), which provides that “The Commission shall give its decision on the application of the Member State within six months of receipt of the notification referred to in Article 3” and to specify the formalities for notification (writing or electronic mail). | |
Amendment 13 Proposal for a regulation Article 3 – paragraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
2. The notification shall include a copy of the existing agreement, the draft agreement or the draft proposal by the third country concerned, if available, and any other relevant documentation. The Member State shall describe the objectives of the negotiations and shall specify the issues which are to be addressed, or the provisions of the existing agreement which are to be amended, and shall provide any other relevant information. |
2. The notification shall include, as appropriate, a copy of the existing agreement, the draft agreement or the draft proposal by the third country concerned, if available, 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. |
Amendment 14 Proposal for a regulation Article 3 – paragraph 3 | |
|
Text proposed by the Commission |
Amendment |
|
3. The notification shall be made at least three months before formal negotiations are scheduled to commence with the third country concerned. |
3. The Commission shall make the notification and, if necessary, the accompanying documentation, available to the European Parliament and the Council, subject to any requirements of confidentiality. |
Amendment 15 Proposal for a regulation Article 4 – paragraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
1. Upon notification, the Commission shall make an assessment as to whether the Member State can pursue negotiations with the third country concerned. If the Community has already concluded any agreement with the third country concerned on the same subject matters, the application of the Member State will be automatically rejected by the Commission. |
1. Upon receipt of the notification, the Commission shall assess whether the Member State may commence negotiations. |
Amendment 16 Proposal for a regulation Article 4 – paragraph 1 a (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
1a. The notification of the Member State shall be rejected by the Commission if: |
|
|
(a) the Community has already concluded an agreement with the third country or third countries concerned on the same subject matter or |
|
|
(b) the envisaged agreement does not fall within the scope of this Regulation. |
Amendment 17 Proposal for a regulation Article 4 – paragraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
2. If the Community has not yet concluded an agreement with the third country concerned, the Commission shall in making its assessment first check whether any relevant Community agreement with the third country concerned is expected in the near future. If this is not the case, the Commission may grant authorisation, provided that the following two conditions are met: |
2. If the Community has not yet concluded an agreement with the third country or third countries concerned, the Commission shall, in making its assessment, first check whether any relevant Community agreement with the third country or third countries concerned is specifically envisaged within the next twelve months. If this is not the case, the Commission shall check that all of the following conditions are met: |
|
(a) the Member State concerned has demonstrated that there is a specific interest in concluding the bilateral sectoral agreement with the third country, related in particular to the existence of economic, geographic, cultural or historical ties between the Member State and that third country; and |
(a) the Member State concerned has substantiated that it has a specific interest in concluding the agreement owing to economic, geographic, cultural, historical or social ties between the Member State and the third country or countries concerned and that there is no present Community interest in concluding the agreement; |
|
(b) the Commission determines that the proposed agreement is of limited impact on the uniform and consistent application of the Community rules in place and on the proper functioning of the system established by those rules. |
(b) the Commission determines that the proposed agreement does not have a significant impact on the uniform and consistent application of the Community rules in place and on the proper functioning of the system established by those rules. |
|
|
(c) the envisaged agreement would not harm the object and purpose of the Community’s external relations policy; |
|
|
(d) in the case of a closed regional agreement, there is no possibility of the Community’s concluding an agreement within a reasonable time. |
Amendment 18 Proposal for a regulation Article 4 – paragraph 2 a (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
2a. If the information transmitted by the Member State is not sufficient for the purposes of making the assessment, the Commission may request additional information. |
Amendment 19 Proposal for a regulation Article 5 – paragraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
1. If the Commission concludes that there are no obstacles to the agreement in the light of the conditions referred to in Article 4, it may authorise a Member State to open negotiations on the agreement with the third country concerned. If necessary, the Commission may propose negotiating guidelines and can request the inclusion of particular clauses in the proposed agreement |
1. If the Commission concludes that the conditions set out in Article 4 are satisfied, the Commission shall authorise the Member State to open negotiations on the agreement with the third country or third countries concerned. If necessary, the Commission may propose negotiating guidelines and may request the inclusion of particular clauses in the envisaged agreement. |
Amendment 20 Proposal for a regulation Article 5 – paragraph 1 – subparagraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
The agreement shall provide for the clause on its denunciation in the event that the Community concludes an agreement with the same third country on the same subject matter. The agreement shall include the following clause: “(the name of Member State) will denounce the agreement when the European Community concludes an agreement with (the name of the third country) on the same subject matters of civil justice as governed by the present agreement”. |
The agreement shall contain a clause providing for full or partial denunciation of the agreement in the event of a subsequent agreement between the Community or the Community and its Member States and the same third country or third countries on the same subject matter. That clause shall be worded taking into account the following guidelines: “(the name of the Member State) shall denounce this agreement in part or in full if and when the 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”. |
Amendment 21 Proposal for a regulation Article 5 – paragraph 3 – subparagraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
3. The Commission shall take a decision on the authorisation referred to in paragraphs 1 and 2 in accordance with the procedure referred to in Article 8(2). |
deleted |
Amendment 22 Proposal for a regulation Article 5 – paragraph 3 – subparagraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
The Commission shall give its decision on the application of the Member State within six months of receipt of the notification referred to in Article 3. |
The Commission shall give its reasoned decision on the application of the Member State within three months of receipt of the notification referred to in Article 3, or of additional information if requested in accordance with Article 4(3). This period may be extended once by a period of thirty days at the Commission’s request. |
Amendment 23 Proposal for a regulation Article 7 – paragraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
1. Before initialling the agreement, the Member State concerned shall notify the Commission of the outcome of negotiations and shall transmit the text of the agreement to the Commission. |
1. Before signing the negotiated agreement, the Member State concerned shall notify the outcome of the negotiations to the Commission and transmit the text of the agreement to the Commission. |
Amendment 24 Proposal for a regulation Article 7 – paragraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
2. Upon notification the Commission shall make an assessment as to whether the negotiated agreement complies with its initial assessment. In making this further assessment the Commission must examine whether the proposed agreement includes the requirements made by the Commission, in particular as regards the inclusion of clauses referred to in Article 5(1) and whether the conclusion of the proposed agreement would render the Community law ineffective and would undermine the proper functioning of the system established by its rules. |
2. Upon receipt of this notification the Commission shall assess whether the negotiated agreement complies with its initial assessment. In making this further assessment the Commission shall examine whether the negotiated agreement satisfies the conditions set out in Article 4, in particular as regards the inclusion of clauses referred to in Article 5(1). |
Amendment 25 Proposal for a regulation Article 7 – paragraph 4 | |
|
Text proposed by the Commission |
Amendment |
|
4. If the Commission takes the view that the negotiations have resulted in an agreement which fulfils the requirements referred to in paragraph 2, the Member State may be authorised to conclude the agreement. |
4. If the Commission takes the view that the negotiations have resulted in an agreement which fulfils the requirements referred to in paragraph 2, the Member State shall be authorised to conclude the agreement. |
Justification | |
This Commission shall have no discretion at this stage. | |
Amendment 26 Proposal for a regulation Article 7 – paragraph 5 – subparagraph 1 | |
|
Text proposed by the Commission |
Amendment |
|
5. The Commission shall take a decision on the authorisation referred to in paragraphs 3 and 4 in accordance with the procedure referred to in Article 8(3). |
deleted |
Amendment 27 Proposal for a regulation Article 7 – paragraph 5 – subparagraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
The Commission shall give its decision on the application of the Member State within six months of receipt of the notification referred to in paragraph 1. |
The Commission shall give its reasoned decision on the application of the Member State within three months of receipt of the notification referred to in paragraph 1. |
Amendment 28 Proposal for a regulation Article 8 | |
|
Text proposed by the Commission |
Amendment |
|
Committee procedure |
Information procedure |
|
1. The Commission shall be assisted by a committee. |
1. Upon receipt of the notification provided for in Article 3(1), the Commission shall inform the Council thereof. Where appropriate, the Council shall also be provided with the relevant documentation, subject to any requirements of confidentiality. |
|
2. Where reference is made to this paragraph, the advisory procedure laid down in Article 3 of Decision 1999/468/EC shall apply, in compliance with Article 7 thereof. |
2. The European Parliament shall also be informed. |
|
3. Where reference is made to this paragraph, the management procedure laid down in Article 4 of Decision 1999/468/EC shall apply, in compliance with Article 7 thereof. |
3. All reasoned decisions provided for in this Regulation shall be made available to the European Parliament and the Council. |
|
4. The period provided for in Article 4(3) of Decision 1999/468/EC shall be three months. |
|
Amendment 29 Proposal for a regulation Article 8 a (new) | |
|
Text proposed by the Commission |
Amendment |
|
|
Article 8a |
|
|
Confidentiality |
|
|
1. In notifying the Commission of negotiations and their outcome as envisaged in Articles 3, 4(3) and 7, Member States shall clearly inform the Commission if any information therein is to be considered confidential and whether it can be shared with other Member States. |
|
|
2. The Commission and Member States shall ensure that any information identified as confidential is treated according to Article 4(1)(a) of 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 documents1. |
|
|
1 OJ L 145, 31.5.2001, p. 43. |
Amendment 30 Proposal for a regulation Article 9 – paragraph 1 – subparagraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
Where the stage of the negotiations so permits, the Commission may propose negotiating guidelines or the inclusion of particular clauses, as referred to in Article 5(1). |
Where the stage of the negotiations so permits, the Commission may propose guidelines or request the inclusion of particular clauses, as referred to in Article 5(1). |
Justification | |
See the justification for the amendment to the first subparagraph of Article 5(1). | |
Amendment 31 Proposal for a regulation Article 10 | |
|
Text proposed by the Commission |
Amendment |
|
No later than the 1st January 2014 the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on application of this Regulation, which may be accompanied by an appropriate legislative proposal. |
No later than 1 January 2014 the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on application of this Regulation, in particular on the possible extension of its scope. The report shall contain a positive recommendation either to abrogate this Regulation or to maintain it in force for a further period of five years or less. It may be accompanied by an appropriate legislative proposal. |
Amendment 32 Proposal for a regulation Article 11 – paragraph 2 | |
|
Text proposed by the Commission |
Amendment |
|
It shall apply until 31 December 2014. |
deleted |
Justification | |
This need for such a sunset clause is not apparent. In any event 31 December 2014 is unrealistic having regard the time needed to adopt the Regulation and for Member States to conduct negotiations with third countries, particularly in view of the ponderous, time-consuming procedures laid down in the Regulation. In any event, the review clause set out in Article 10, which provides for the Commission to report to the other institutions by 1 January 2014, makes this sunset clause unnecessary. | |
PROCEDURE
|
Title |
Bilateral agreements between Member States and third countries on judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations |
|||||||
|
References |
COM(2008)0894 – C6-0035/2009 – 2008/0266(CNS) |
|||||||
|
Committee responsible |
LIBE |
|||||||
|
Opinion by Date announced in plenary |
JURI 3.2.2009 |
|
|
|
||||
|
Rapporteur Date appointed |
Tadeusz Zwiefka 19.1.2009 |
|
|
|||||
|
Discussed in committee |
12.2.2009 |
|
|
|
||||
|
Date adopted |
31.3.2009 |
|
|
|
||||
|
Result of final vote |
+: –: 0: |
16 4 0 |
||||||
|
Members present for the final vote |
Carlo Casini, Bert Doorn, Monica Frassoni, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Neena Gill, Klaus-Heiner Lehne, Hans-Peter Mayer, Manuel Medina Ortega, Hartmut Nassauer, Aloyzas Sakalas, Francesco Enrico Speroni, Diana Wallis, Rainer Wieland, Jaroslav Zvěřina, Tadeusz Zwiefka |
|||||||
|
Substitute(s) present for the final vote |
Nicole Fontaine, Georgios Papastamkos, Jacques Toubon, Renate Weber |
|||||||
PROCEDURE
|
Title |
Bilateral agreements between Member States and third countries on judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations |
|||||||
|
References |
COM(2008)0894 – C6-0035/2009 – 2008/0266(CNS) |
|||||||
|
Date of consulting Parliament |
19.12.2008 |
|||||||
|
Committee responsible Date announced in plenary |
LIBE 3.2.2009 |
|||||||
|
Committee(s) asked for opinion(s) Date announced in plenary |
JURI 3.2.2009 |
|
|
|
||||
|
Rapporteur(s) Date appointed |
Gérard Deprez 29.1.2009 |
|
|
|||||
|
Discussed in committee |
10.2.2009 |
19.3.2009 |
15.4.2009 |
|
||||
|
Date adopted |
15.4.2009 |
|
|
|
||||
|
Result of final vote |
+: –: 0: |
31 0 1 |
||||||
|
Members present for the final vote |
Alexander Alvaro, Emine Bozkurt, Mihael Brejc, Kathalijne Maria Buitenweg, Giusto Catania, Carlos Coelho, Panayiotis Demetriou, Gérard Deprez, Agustín Díaz de Mera García Consuegra, Bárbara Dührkop Dührkop, Armando França, Urszula Gacek, Jeanine Hennis-Plasschaert, Ewa Klamt, Henrik Lax, Claude Moraes, Javier Moreno Sánchez, Rareş-Lucian Niculescu, Martine Roure, Inger Segelström, Csaba Sógor, Vladimir Urutchev, Manfred Weber, Renate Weber |
|||||||
|
Substitute(s) present for the final vote |
Adamos Adamou, Edit Bauer, Marco Cappato, Sophia in ‘t Veld, Sylvia-Yvonne Kaufmann, Bill Newton Dunn, Siiri Oviir, Nicolae Vlad Popa |
|||||||