Jean Monnet
Lifelong Learning Programme
‘Cross-Border Litigation in UK’
Workshop Report No 7
Friday 16th August 2013
"This project has been funded with support from the European Commission. This publication reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein."
Background
On 16th August 2013, practitioners and academics connected with the Centre for Private International Law met at the final workshop of seven dedicated to promoting the debate on how cross-border litigation functions within Europe. The purpose of the workshop was to offer the opportunity for a free and frank exchange of ideas surrounding the UK perspective on EU private international law.
This report intends to provide a brief overview of the ideas that emerged from the workshop without attributing any views to any particular individual.
The effectiveness of EU institutions in developing private international law (PIL) with particular reference to the handling of the protocol giving the UK the choice to opt in.
The Commission
The group highlighted two problems. The first was that the Commission was strongly influenced by political aims rather than substance and the second was that the Commission has not been consistently provided with the right people to do the job. There was a distinct lack of knowledgeable staff.
It was noted that the European Commission has a primary responsibility to all the Member States and as such should, when it is formulating policy, generally take into account all aspects of the culture and traditions of the whole EU and do so in a spirit of openness and non-discrimination. The successful delivery of this responsibility by the Commission depends on it having both the capacity and the willingness to adopt an open and inclusive approach to policy formulation, without favouring any individual member State or group of States. Generally, and this applies especially in complex policy areas such as PIL and Civil Justice, the Commission should work on the basis of properly conducted and objective research into all the legal systems of the EU before adopting new proposals and equally to evaluate the outcomes of its policies on a similar basis before adopting amendments or developments of those proposals.
The Commission also has to deploy appropriate resources to the tasks involved, not least to have personnel with appropriate knowledge and background experience. Once again it was highlighted that this can sometimes be hindered for example where there is a shortage of expertise in a given subject area or the ‘quota’ system requires a mix of staff with national backgrounds where the desirable competences are diluted. The decision making procedures of the Commission, for instance the rounds of inter-service consultation leading to adoption of proposals by the College, can be a problem in certain subject areas where other services than the one making the proposals have different policy aims or ideas or where they have insufficient expertise to understand fully or analyse correctly the proposals about which they are consulted.
In regard to the ‘Civil Law/Justice/PIL’ policies, which began to be adopted after the entry into force of the Treaty of Amsterdam, the Commission took over the work of a task force, which had been set up after the Maastricht Treaty, that had been involved in the pre-Amsterdam negotiations on Service of Documents, Jurisdiction in Matrimonial Matters, Insolvency and Applicable Law in Tort and Delict as well as the review for the Brussels and Lugano Conventions and so had developed significant expertise. The original group was replaced by individuals who had little or no expertise in PIL or in policy making and this led to problems both within as well as externally once the Commission assumed its competences in the subject matter. A build up of personnel with relevant expertise did not happen till later but only partly through the recruitment of permanent staff with a PIL background. It was pointed out that at that time the Commission concentrated almost exclusively on converting existing instruments into Regulations.
With reference to the relationship between the Commission and the UK, the general observation was that the UK tended to be marginalised by the Commission. Even though the first two Director Generals of JLS were British this did not result in any particularly well studied link being created between the Commission and UK policy interests in the area and, furthermore, until 2004 there was no member of staff in the relevant unit with a UK background either because the UK did not push for this or because it was thought neither to be necessary nor would it be welcome.
It is clear that the UK opt-in Protocol did not help as this was seen by the Commission as unhelpful and a signal by the UK that it wished to have special treatment and to be able to pick and choose which initiatives it would support – in other words that the UK was choosing ‘not to be a part of the club’. This meant that there was an incipient resistance in the Commission, at least at management level, to accepting UK arguments on PIL policy based on peculiarly UK circumstances though in reality this was not of particular significance during the first years of the PIL regime because the UK adopted a blanket opt-in policy.
The UK position as regards inputs to policy varied depending on who was acting for the UK in the different policy areas and just as much who in the Commission was dealing with the subject matters as from 2004 onwards there were more experienced personnel in the relevant unit of the Directorate General JLS who were more open to dialogue on matters of strategic importance to the UK. The need to have people in place with appropriate expertise for the right projects was only later realised in the Commission and when this was done it did give rise to some of the better examples of negotiations where not only the UK position but the positions of other Member States were properly taken into account and these led to more satisfactory outcomes not only for internal negotiations but also, in at least two cases, in external negotiations.
However in general the UK position has tended to be marginalised to a degree especially where the Commission has been influenced by lobbying interests, whether legal or otherwise, with an animus not to address policy issues of importance to the UK and thus to exclude UK proposals for policy solutions; this position will not be assisted by current political developments in respect of which both the UK and the EU capacities to make sound inclusive policies will be the poorer.
Other factors which have from time to time played a role in this regard included the vicissitudes of attitude in the UK Permanent Representative who sometimes gave different signals to Commission and officials from other Member States to those being given in the relevant policy discussion by UK officials and the fact that not all the relevant UK Ministers were knowledgeable enough about, nor indeed interested in, the subject matters; this has not been helped by priority of thought being given to other subjects than PIL coupled with a general down grading in the subject in the relevant Justice Ministries which led in turn to a loss without replacement of experienced personnel.
In only one instance has the UK introduced and managed to conclude within its own policy parameters an initiative for an EC/EU project in the area of civil justice policy and the fact that the UK has tended to be standoffish in many situations has given fuel to the other Member States as well as to the Commission in their tendency to seek to marginalise the UK policy interests in this area
The best examples of the Commission working appropriately with the UK were in the Hague Maintenance Convention and the latter stages of the Maintenance Regulation and the recast of Brussels I. The worst examples were in Rome III, Succession and Matrimonial Property.
The Council
It was noted that more than 20 Regulations, Directives and Decisions in the field of Private International Law have been approved since the Treaty of Amsterdam came into force.
Evidence was also put forward that the Council and European Parliament appear to have a positive relationship. Although it was noted that negotiations were taking longer to reach the final approval stage after 2003, only four of the acts were approved in a second sitting.
It was highlighted that it is also now normal for COM to negotiate several acts simultaneously due to the increased length of time it takes for negotiations combined with an increase in activity by the Council. There are currently 7 legislative files being discussed at the working party on civil law matters.
In the field of PIL, the Council does not engage directly on preparatory work, be it comparative law analysis or impact assessments. As such it is dependent on the studies gathered or produced by COM, and the national internal consultations that Member States carry out. It is possible that the ever growing number of legislative proposals coupled with the recent cuts in public expenditure at the national level, and the subsequent reduction of available staff, in particular specialised professionals, may result in increased difficulties in drafting legislation that adequately represent the overall interests at stake. Practice shows that certain delegations, in particular from small or medium size countries, need more time than others to assume a national position in the meetings.
As regards the available feedback from internal consultations; stakeholders and society in general tends traditionally to be more active in certain countries (e.g. UK) than in others. Importantly, stakeholders’ activity may not indicate correctly the interests at stake, as certain interest groups are normally better organised than others.
COM’s studies are seldom analysed in the working party on civil law matters and their quality is, in general, not scrutinised by Member States after the delivery of the study despite some evident problems in collecting national data. Recently however the impact assessment relating to the proposal for a Regulation on a Common European Sales Law [COM(2011) 635 final] was analysed during a two and a half day period. At stake is an initiative that a majority of Member States considers unjustified but the discussion did show incongruence in the data and methods applied. EP, supposed to be positive as regards the proposal, has also encountered several weaknesses in the thorough analysis carried out by its impact assessment department.
Nevertheless, the studies that COM offers are normally useful for delegations to prepare their own negotiating position. Impact assessments in PIL have been less helpful as tools as they are often not as impartial as desirable; trying to prove an already assumed proposition. Still, worse than a guided impact analysis is the non-existence of one, as was the case with the Rome I proposal and the Rome III proposal. In the first case, the absence of an impact assessment frustrated a possible agreement as regard the effectiveness of an assignment against third parties, due to the economic and financial consequences at stake. In the second case, it prevented certain states from joining in.
The Council depends on Member States’ capacity to assess interests and impacts. At present States seem to be increasingly dependent on pro bono contributions from stakeholders and, in particular, academics. Essential comparative law analysis is expensive and time consuming and only COM seems to be in a position to sub-contract those. However, the accuracy of these studies is rarely openly discussed among Member States.
In any event the process of defining interests in abstract fields like private international law will always be highly complex, in particular if the governing idea is “Justice for Growth”. For instance, direct economic interests are difficult to determine and will depend on several variables that cannot be anticipated, like whether a party happens to be the defendant or the claimant in proceedings.
So whether or not taking into account national interests should be an objective of the role of the Council in developing PIL is debatable; however there is a limited role to be played as regards whatever may be considered as cultural diversity [Art. 3(3) TEU] and national identities, inherent in their fundamental structures, political and constitutional [Art. 4(2)TEU].
In this regard it could be assumed that the dimension and political relevance of a Member State would be proportionally reflected in its capacity to assert a national interest successfully in the group. Although this may well be generally the case, in the field of PIL experience shows that more subtle questions than the dimension or political relevance of a country may actually influence this capacity. In fact, a very small country like Malta may do particularly well in asserting national interests as may be noticed by Council Regulation (EC) No 2116/2004 amending Regulation Brussels IIbis and Brussels I and in particular the inclusion of a gross exception on an enhanced cooperation instrument on divorce and legal separation that rendered it inapplicable in that territory for all divorce cases (Council Regulation 1259/2010- Rome III).
It was suggested that under unanimity it is easy to assert a national interest. However, within the context of the negotiations of the Rome III initial proposal, a minority group wanted to give priority to the application of lex fori, considered to contribute not only to the speed of proceedings but also by some as a prerogative of the right not to be married against one’s will. SE took the lead in this defence but the result was not a postponement of negotiations as is often the case in the EU in other fields, nor an attempt of compromise on the basis of lex fori. Instead, shortly after the Council noted the impasse, other Member States and Commission started discussing the possibility of enhanced cooperation. Naturally, the enhanced cooperation proposal for a Regulation did not try to provide any compromise with previously explained positions but ended up including the exception for Malta already discussed.