Explanatory Memorandum to COM(2013)338 - Authorization of Austria and Malta to accede to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2013)338 - Authorization of Austria and Malta to accede to the Hague Convention on the Service Abroad of Judicial and Extrajudicial ... |
|---|---|
| source | COM(2013)338  |
| date | 06-06-2013 |
1.1. Purpose of the proposal
The Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter: the Hague Service Convention) provides for the channels of transmission to be used when a judicial or extrajudicial document has to be transmitted from one Contracting State to the Convention to another Contracting State for the service in the latter. The Hague Service Convention simplifies the method of transmission of judicial and extrajudicial documents. The main channel of transmission, in lieu of consular and diplomatic channels, is through a Central Authority, who shall serve the documents or shall arrange to have them served. The Convention also provides for several alternative methods of transmission (e.g. postal channels). It also aims to establish a system which, to extent possible, brings actual notice of the document to be served to the recipient in sufficient time to enable him to defend himself. Furthermore, the Convention facilitates proof that the service has been affected abroad, by mean of certificates contained in a uniform model.
The Hague Service Convention falls within the exclusive external competence of the European Union following the adoption of the Union internal rules on service of documents in the Council Regulation (EC) No 1348/2000, repealed by the Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000[1]. Consequently, the Member States cannot conclude the Hague Service Convention without being authorized to do so.
24 Member States had acceded to the Hague Service Convention before the adoption of EU legislation. The remaining Member States which have to be authorised to accede to the convention are Austria and Malta[2].
The Commission therefore proposes that the Council authorizes Austria and Malta to accede to the Hague Service Convention in the interest of the European Union. The Convention does not have a clause allowing the EU itself to accede.
1.2. Importance of accession to the Hague Service Convention
The Hague Service Convention, improving the transmission of judicial and extrajudicial documents abroad is particularly important for the European Union and its Member States because it facilitates judicial cooperation in cross-border litigation in relations with the third states, parties to the Convention. The Convention is broadly ratified, counting 67 Contracting States at the moment.
Austria and Malta have expressed their interest in acceding to the Hague Service Convention.
Their accession to the Convention would correspond with the policy commitment of acceding to the instruments of the Hague Conference on Private International Law, where there is an EU interest, undertaken by the EU when it became a member of the Hague Conference in 2007.
Furthermore, the EU in its external relations has been promoting the accession of third countries to the Hague Service Convention as an efficient and reliable system for the service of judicial and extrajudicial documents. It would be consistent with this approach that all the Member States of the EU itself are Contracting States to the Convention.
Contents
In the relevant working party in the Council Austria and Malta have confirmed their interest in acceding to the Hague Service Convention. The Permanent Bureau of the Hague Conference on Private International Law has conveyed interest of third countries Party to the Convention to extend it to all EU Member States.
3.1. Competence of the EU with respect to the Hague Service Convention
In accordance with Article 3(2) of the Treaty on the Functioning of the European Union and the case law[3] of the European Court of Justice, the matter of service of judicial and extrajudicial documents falls into the exclusive external competence of the European Union, because of the adoption of internal Union legislation by means of Regulation (EC) No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. The Member States therefore no longer have the right to contract obligations with third countries which affect these rules.
In particular, Article 3(2) TFEU provides that the Union has exclusive competence for the conclusion of an international agreement in so far as its conclusion may affect common rules or alter their scope. Under this rule, in accordance with the case law, an agreement falls within the EU's exclusive competence when it can be demonstrated that the subject matter of the agreement falls within the scope of internal common rules, or within an area already largely covered by such rules, or rules have been adopted in areas falling outside common policies and, in particular, in areas where there are harmonising measures, regardless of whether there is or is not a contradiction between those common rules and the agreement.
Regulation (EC) No 1393/2007 applies to civil and commercial matters when it is necessary to transmit judicial or extrajudicial documents for service from one Member State to another. Agencies designated by the Member States are responsible for transmitting and receiving documents. The Regulation sets up a system that reflects the one provided for by the Hague Service Convention, therefore the subject matter of the Hague Service Convention clearly falls within the scope of the EU internal legislation. Consequently, the European Union has exclusive competence over the Hague Service Convention.
Furthermore, the Union has already exercised its external competence in the matter of service of documents by concluding international agreement with Denmark on the service of documents i.
3.2. Authorization of the Member States
Since the Hague Service Convention has no Regional Economic Organization clause, it is not possible for the European Union to become a Contracting Party to the Convention. It is therefore necessary for the Union to exercise its powers through its Member States and thus authorise the Member States concerned to accede to the Hague Service Convention in the interest of the Union. There are several precedents in the area of civil justice, the most recent one is evidenced by the Council Decision 2008/431/EC authorising certain Member States to ratify, or accede to, in the interest of the European Community, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community law[5].
The Hague Service Convention provides for a possibility for the Contracting States to make declarations with regard to a number of its provisions, e.g. Article 8(2), Article 10, Article 15(2), Article 16(3). The EU Member States, Contracting States to the Convention, entered various declarations. The situation is not uniform: e. g. a number of Member States entered declaration on Article 8(2) granting diplomatic and consular agents the power to serve documents on their own national only, while some others opposed only to methods of transmission provided in Article 10. Declarations pursuant to Article 16(3) providing for application for relief are different e.g. as concerns the time limit to fill the application. Against this backdrop, it is not reasonable to require the Member States concerned to make uniform declaration(s), if any. In conclusion, the Member States concerned should, when acceding to the Convention, make all appropriate declarations allowed under its provisions that they deem necessary. The text of such declarations should be attached to the Council decision though.