Explanatory Memorandum to COM(2005)639 - Accession of the EC to the Hague Conference on Private International Law - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2005)639 - Accession of the EC to the Hague Conference on Private International Law. |
|---|---|
| source | COM(2005)639  |
| date | 09-12-2005 |
The Hague Conference on Private International Law (HCCH) is a long-established international organisation with the objective to work for the progressive unification of the rules of private international law, mainly by negotiating and drafting international conventions. The works of the HCCH have resulted in the adoption of a substantial number of important Conventions in the different fields of private international law. The organisation has to date adopted 35 conventions and counts 65 Members, including all Member States of the European Union.
Since the entry into force of the Treaty of Amsterdam, the European Community has the competence to adopt measures in the field of judicial co-operation in civil matters having cross-border implications insofar as necessary for the proper functioning of the internal market. The Community has exerted its newly acquired competence by adopting a number of instruments and further instruments are under negotiation or in preparation. Many of these instruments overlap, partly or fully, with the areas of work of the HCCH. Examples are the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents which covers the same matter as Regulation 1348/2000 on the service in the Member States of judicial and extra-judicial documents; the 1970 Convention on the Taking of Evidence which covers the same matter as Regulation 1206/2001 on cooperation between the courts of the Member States in the taking of evidence; the 1980 and 1996 Conventions enhancing the Protection of Children which partly overlap with Regulation 2201/2003 on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility; and last but not least the 2005 Convention on Choice of Court Agreements and the draft Convention on Maintenance Obligations which cover areas governed by Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters.
The adoption of these internal instruments entailed an implicit transfer of external competences in the areas covered by them from the Member States to the Community. In view of these newly acquired external powers and its increasing involvement in the work of the organisation, it became necessary for the Community to become a full member of the HCCH. At present, the Community enjoys only observer status in the organisation. Full membership of the Community in the HCCH is essential for two reasons: From a political point of view, membership would grant the Community a status consistent with its new role as a major international player in the field of civil judicial cooperation. From a legal point of view, membership would enable the Community to fully participate in the negotiations of conventions in areas of its competence by expressing its views and positions and ensuring the consistency and coherence between its own rules and envisaged international instruments. Moreover, the Community as such rather than its Member States would be the subject of the rights and obligations stemming from Hague Conventions in areas of its competence.
For these reasons, the Council, by decision of November 28th, 2002, authorised the European Commission to negotiate the conditions and modalities of Community accession to the HCCH. By a joint letter from the European Commission and the Presidency to the HCCH of December 19th, 2002, the Community applied to become a member of the HCCH and requested the opening of negotiations. In April 2004, a Special Commission on General Affairs and Policy of the organisation took the in-principle decision to admit the European Community as a Member.
Since the Statute of the HCCH contemplates only membership of States, not of international organisations, Community accession requires amendments to the Statute. The text of these amendments has been adopted by consensus at the Diplomatic Conference held in The Hague from June 14th - 30th, 2005 and the Members of the HCCH have subsequently been invited to cast their votes on the amendments in writing, if possible within a period of nine months. According to Article 12 of the Statute, a two-thirds majority is required to approve the amendments to the Statue. Once this majority is reached, but not earlier than 31st March 2006, the Secretary General will draw up a procès-verbal informing the Member States of the outcome of the vote and the amendments will enter into force three months later. Shortly after the entry into force, an extraordinary meeting of the Special Commission on General Affairs and Policy will be convened to decide upon the admission of the Community to the HCCH.
Taking into account the adoption of the amendments of the Statute by consensus on June 30th, 2005, and the unanimous request of all Members of the HCCH for the accession of the European Community, it is highly probable that the required two-thirds majority will be largely reached by 31st of March 2006, i.e. at the end of the nine months period. Consequently, the amendments of the Statute would enter into force on 1st of July 2006 and the formal decision to admit the Community to the HCCH would be taken in the first week of July 2006. It is necessary to launch the procedure for a Council decision on the accession of the Community to the HCCH already at this time in order to ensure that the Community is ready to accede by the beginning of July 2006. The Community will then be able to deposit its instrument of accession as soon as the HCCH has taken the formal decision to admit it.
2. RESULTS OF THE NEGOTIATIONS
The Commission negotiated the conditions and modalities of Community accession to the HCCH in accordance with the Council’s negotiating directives. All provisions relevant for Community accession were included in the Statute. Consequential changes were made to the Rules of Procedure. Since Members wanted the amendments to be of a general nature, the relevant provisions do not refer to the “European Community” but to “Regional Economic Integration Organisations” in general. In sum, the revised Statute contains the following provisions of relevance for the European Community:
- Membership of the HCCH is open to Regional Economic Integration Organisations (REIOs) which participate on equal footing with Member States in meetings of the organisations. To be eligible to apply for membership, a REIO must be constituted solely by sovereign States which have transferred competence to it over a range of matters within the purview of the HCCH, including the authority to make decision binding on its Member States in respect of these matters. It is uncontested that the European Community fulfils these requirements.
- At the time of application, a REIO has to submit a declaration of competence specifying the matters in respect of which competence has been transferred to it by its Member States. Furthermore, the REIO and its Member States have to ensure that any change regarding the competence of the REIO or its composition is notified to the HCCH. Finally, Members of the HCCH are entitled to request information whether the REIO or its Member States have competence in respect of any specific question and the REIO and its Member States have to ensure that the relevant information is provided upon such request.
- Decisions of the HCCH will be taken by consensus to the fullest extent possible. A vote will only be called, if exceptionally it is not possible to attain consensus.
- As to voting rights, a REIO is entitled to exercise a number of votes equal to the number of Member States which have transferred competence to it on the matter in question, and which are entitled to vote in and have registered for such meetings. This implies that no actual physical presence of the Member States at the moment of the vote is necessary.
- A REIO does not contribute to the annual budget of the HCCH in addition to its Member States but has to pay the additional administrative expenses arising out of its membership. This sum will be determined by the HCCH in consultation with the REIO.
- The European Community will assure the HCCH by way of written declaration that it endeavours to examine whether it is in its interest to join existing Hague Conventions, and that where this interest exists, it will, in cooperation with the HCCH, make every effort to overcome the difficulties resulting from the absence of a clause providing for the accession of a REIO to these Conventions. In addition, the Community endeavours to make participation possible of representatives of the Permanent Bureau of the HCCH in meetings of experts organised by the European Commission where matters of interest to the Conference are discussed.
3. CONCLUSION
IN VIEW OF THE POSITIVE OUTCOME OF THE NEGOTIATIONS, THE COMMISSION RECOMMENDS THAT THE COUNCIL ADOPT THE DECISION concerning the accession of the European Community to the HCCH.