Monday, 5 May 2008

EU TFEU: Judicial cooperation in civil matters



For citizens and businesses with cross-border contacts, EU judicial cooperation in civil matters is potentially important. The Treaty of Lisbon re-writes, clarifies and expands the current treaty provisions, but for families the attainment of cross-border rules is subject to national vetoes more limiting than even today.


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Article 81 of the Treaty on the Functioning of the European Union (TFEU) marks the beginning and the end of a new Chapter 3 on judicial cooperation in civil matters. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 102–103), with the location of the provision added from the table of equivalences (page 460 to 463):

Part Three ‘Policies and internal actions of the Union’

Title V TFEU ‘Area of freedom, security and justice’

Chapter 3 ‘Judicial cooperation in civil matters’

Article 81 TFEU
(ex Article 65 TEC)

1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:

(a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases;

(b) the cross-border service of judicial and extrajudicial documents;

(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;

(d) cooperation in the taking of evidence;

(e) effective access to justice;

(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;

(g) the development of alternative methods of dispute settlement;

(h) support for the training of the judiciary and judicial staff.

3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.

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In Article 2, point 66, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated:

66) Article 65 shall be replaced by the following Chapter 3 and Article 65.

Then followed the wording (as above) of the new Article 65 TFEU (ToL), which became Article 81 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/61–62, 209).

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Article 65 of the current Treaty establishing the European Community (TEC) is found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/68–69):

Article 65 TEC

Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and in so far as necessary for the proper functioning of the internal market, shall include:

(a) improving and simplifying:

— the system for cross-border service of judicial and extrajudicial documents,

— cooperation in the taking of evidence,

— the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases;

(b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction;

(c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.

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The European Convention proposed the following expanded Article III-170 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):

SECTION 3
Judicial cooperation in civil matters

Article III-170 Draft Constitution

1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

2. To this end, laws or framework laws shall lay down measures aimed inter alia at ensuring:

(a) the mutual recognition and enforcement between Member States of judgments and decisions in extrajudicial cases;

(b) the cross-border service of judicial and extrajudicial documents;

(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;

(d) cooperation in the taking of evidence;

(e) a high level of access to justice;

(f) the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;

(g) the development of alternative methods of dispute settlement;

(h) support for the training of the judiciary and judicial staff.

3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be laid down in a European law or framework law of the Council of Ministers. The Council of Ministers shall act unanimously after consulting the European Parliament.

The Council of Ministers, on a proposal from the Commission, may adopt a European decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council of Ministers shall act unanimously after consulting the European Parliament.

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The IGC 2004 took over the draft text in Article III-269 of the Treaty establishing a Constitution for Europe with a few modifications (OJ 16.12.2004 C 310/117):

SECTION 3
JUDICIAL COOPERATION IN CIVIL MATTERS

Article III-269 Constitution

1. The Union shall develop judicial cooperation in civil matters having cross‑border implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

2. For the purposes of paragraph 1, European laws or framework laws shall establish measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:

(a) the mutual recognition and enforcement between Member States of judgments and decisions in extrajudicial cases;

(b) the cross-border service of judicial and extrajudicial documents;

(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;

(d) cooperation in the taking of evidence;

(e) effective access to justice;

(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;

(g) the development of alternative methods of dispute settlement;

(h) support for the training of the judiciary and judicial staff.

3. Notwithstanding paragraph 2, a European law or framework law of the Council shall establish measures concerning family law with cross-border implications. The Council shall act unanimously after consulting the European Parliament.

The Council, on a proposal from the Commission, may adopt a European decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

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Although the current Article 65 TEC includes much of the subject matter, the European Convention re-wrote, clarified and expanded the provision in Article III-170 of the draft Constitution. The ordinary legislative procedure became the main rule, instead of the complex procedures referred to in Article 67 TEC (although these lost their meaning after the transitional period and later after the adoption of co-decision, except for aspects relating to family law).

The Constitutional Treaty was, in essence, the same as the draft Constitution, but with some modifications. In addition to ‘stylistic’ changes, the IGC added the reference ‘particularly when necessary for the proper functioning of the internal market’ to paragraph 2, and ‘a high level of access to justice’ became ‘effective access to justice’ in point (e) of that paragraph.

Article 65 TFEU (ToL), renumbered Article 81 TFEU, takes over the text of the Constitutional Treaty with general editorial changes, except for one essential addition.

This followed from the IGC 2007 Mandate (Council document 11218/07, point 19(k), page 8) which stated, with the IGC 2004 as its basis:

“In the Chapter on judicial cooperation in civil matters, paragraph 3 of the Article on such cooperation, as agreed in the 2004 IGC, will be modified so as to give a role to national parliaments in the “passerelle” clause on family law (see point 2(b) of Annex 2).”

Annex 2, point 2(b), page 15, gave the proposed wording of the new third subparagraph of paragraph 3, only stylistically changed during the IGC 2007.

In other words, family law will continue to be an area, where unanimity in the Council is required, and moving parts of decision-making (“passerelle clause”) in family law matters with cross-border implications to the ordinary legislative procedure can be vetoed by any member state government and national parliament.

From the viewpoint of cross-border families, this may look as the camel and the eye of the needle.

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To serve as introductory reading, both political and legal, let us take a look at a few British views on matters relating to cross-border families and other questions relating to EU judicial cooperation in civil matters.

In ‘The Reform Treaty: the British approach to the European Union intergovernmental conference, July 2007 (Command Paper 7174), the UK Foreign and Commonwealth Office had this to say (published 23 July 2008; page 10):

“The Reform Treaty retains the requirement for unanimity (i.e. a UK veto) for measures concerning family law with cross border implications. In addition, it will include a provision enabling a single national Parliament to veto any move to use the ‘minipasserelle’, which would allow for decision making on aspects of family law with crossborder implications to be changed from unanimity to co-decision and QMV.”

The FCO view is available at:

http://www.official-documents.gov.uk/document/cm71/7174/7174.pdf

The brief version of the Lisbon Treaty amendments was presented by the FCO in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 81 TFEU, Article 65 TFEU (ToL):

“Draws on Articles 65 and 67(5) TEC. Adds new references to mutual recognition of judgments and decisions, access to justice, alternative dispute settlement methods, and support for judicial training. Existing passerelle to move aspects of family law to co-decision, now subject to a veto by any national parliament.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community (published 6 December 2007; page 37) commented upon the UK position and family law (page 38):

“The UK has the option to opt in to measures under this Article. With regard to decisions on family law, the TFEU retains the requirement to act by unanimity under the OLP, but expands on the 2004 text with a ‘red card’ mechanism by which proposals will be notified to national parliaments, which will be able to make known their opposition within six months and thereby prevent its adoption.”

The Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

Steve Peers has a lengthy comment on the various aspects of the Lisbon Treaty provision in Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 65 TFEU (ToL), Article 81 TFEU. Here, just a short quote on the possibility to move to qualified majority voting and co-decision in family law matters (page 12):

“This actually gives more power to national parliaments over this issue than they have at present.”

The JHA analysis and other Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed ‘Civil justice’ on pages 137 to 139. The conclusions of the Committee are on page 139:

“6.140. The power under the current Article 65 to adopt measures of judicial cooperation in civil matters is itself potentially broad, since the list of areas of potential action given is non-exclusive. Article 81 contains a more extensive list of areas of potential action. However, these in practice are areas in which cooperation has already been undertaken under the current Article, and the list given is exhaustive.

6.141. In lieu of the present absolute requirement that measures taken be necessary for the proper functioning of the internal market, Article 81 provides that measures may be taken “particularly when” so necessary. But, under both existing Article 65 and new Article 81, such measures are only permissible in civil measures “having crossborder implications”, itself a significant limitation. Both the existing and the new articles are capable of giving rise to differences of view regarding the scope of their application in particular situations, and we doubt whether this is much affected by the changes in Article 81. This is an area where the new powers of national parliaments to police the subsidiarity principle (see Chapter 11) may be particularly important. We consider the requirement that there should be “cross-border implications” or “a cross-border dimension” further below.”

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf



Ralf Grahn