Rome I Reg. Adopted (and Other Results of the JHA Council Session of 5-6 June 2008)
Following our post on the agenda of the JHA session held in Luxembourg on 5-6 June 2008, a factsheet has been released by the Slovenian Presidency with the main results of the Council in the field of judicial cooperation in civil matters.
The first and most important achievement is the adoption of the Rome I Regulation on the law applicable to contractual obligations (text of the regulation and declarations), that will be soon published in the OJ. The application in time of the act is set out in its Articles 28 and 29 (18 months after its adoption, to contracts concluded after the same date).
As regards the other items discussed in the Council, here’s an excerpt of the factsheet (emphasis added):
The Council agreed on a set of political guidelines for further work on a proposal for a Regulation on maintenance obligations and in particular on the principal goal of the Regulation: the complete abolition of exequatur on the basis of harmonised applicable law rules. […] The guidelines agreed contain compromise solutions on six key elements of the proposal: its scope, jurisdiction, applicable law, recognition and enforceability, enforcement and a review clause.
Rome III – Applicable law in matrimonial matters
A large majority of Member States supported the objectives of this proposal for a Council Regulation. Therefore and due to the fact that the unanimity required to adopt the Regulation could not be obtained, the Council established that the objectives of Rome III cannot be attained within a reasonable period by applying the relevant provisions of the Treaties. Work should continue with a view to examining the conditions and implications of possibly establishing enhanced cooperation between Member States. […]
The Hague Convention – Protection of children
The Council adopted a Decision authorising certain EU member states to ratify, or accede to, the 1996 Hague Convention, and to make a declaration on the application of the relevant internal rules of EU law. This very important Convention concerns jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children. It constitutes a crucial instrument to protect the interest of a children at worldwide level. [see also this press release by the Commission and a preparatory document to the attention of COREPER]
Recognition and enforcement of judgments on civil and commercial matters (Lugano)
Pending the assent of the European Parliament the Council approved the conclusion of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which will replace the Lugano Convention of 16 September 1988 (see Council doc. n. 9196/08 of 27 May 2008). […]
The Council agreed on an update of the external relations strategy in the field of judicial cooperation in civil matters. The document is not a legal framework but rather an evolving process of defining and achieving policy objectives in full conformity with the provisions of the EC Treaty.
In The Hague Programme the European Council called for the development of a strategy reflecting the Union’s special relations with third countries, groups of countries and regions and focusing on the specific needs for JHA cooperation with them.
In April 2006 the Council approved a strategy document outlining aspects of judicial cooperation in civil matters (doc. n. 8140/06). As indicated in this document, the development of an area of freedom, security and justice can only be successful if it is underpinned by a partnership with third countries on these issues which includes strengthening the rule of law and promoting respect for human rights and international obligations.
The external dimension of judicial cooperation in civil matters has growing significance. On the one hand, international agreements with third countries are indispensable for providing legal certainty and foreseability for European citizens on a global scale. On the other hand, it is also important to safeguard the uniform application of Community law in international negotiations.
First of all: you’re doing a laudable job. Your entries on Rome I are very helpful.
Second: is there a document or article where the Commsision or an expert explains more about the preference for choice of law on consumercontracts? Depecage was a hot item during the greenbookperiod; a lot of people didn’nt want that to continue in ROME I. The commission had the guts to skip the choice of law with consumercontract. The Ep amended this and put it back in. The only explanation I can find, is the argument that its unfair for the en bad for the internal market. In mine opinion its a huge difference. It’s hard to believe that the commission agreed as easiliy as it look likes.
Third: what do you think of the first exception of article 6 paragraph 4 (a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitualresidence)
This will undermine legal certainty as some digital processes as dwonloading are hard to define. It’s hard to qualify terms like downloading. It could be qualified as supply of service but also as supply of goods. One ay or the other downloading should be protected.
As regards Council/Commission documents dealing with consumer contracts, I have spotted some (by title only) on the Council’s Register. Given the end of the codecision procedure, all the documents will be made accessible in a few weeks, but I think you can file an application to access a specific one also in advance. Useful information, stating the position of Member States and institutions on specific issues, can be also found in the “Summary of discussions” which are prepared from time to time during the procedure by the Committee on Civil Law Matters: they are available on the Council’s Register as well.
As regards the inclusion of downloading (and, in general, of contracts concluded and/or performed online) in the material scope of application of Art. 6, the issue was largely debated at the time of the conversion of the Brussels Convention into Reg. 44/2001 (the Commission organized a public hearing, the Hague Conference a number of meetings and round tables, etc.). I am not so updated on the matter, but I feel that this aspect gained much less attention in the procedure that has led to the Rome I Reg., since the basic decision was to follow the approach of art. 15(1)(c) of Brussels I Reg.
At a first look, I do not think that the exception provided by Art. 6(4)(a) would cover such kind of e-contracts.
In addition to articles and books that have been written on the matter in the last decade, I would like to point out a paper written by Peter Lenda (Norwegian Research Center for Computers and Law) in the frame of the “E-CLIP” Project (Electronic Commerce Legal Issues Platform): “The choice-of-law in European electronic commerce contracts”.
It can be found, along with other works on the same topic (such as the one by M. Foss and L.A. Bygrave), on the project’s site http://www.eclip.org (Research Papers/Private International Law).
p.s. in the latest round-up of PIL articles compiled by Martin George, see also, on Art. 15(1)(c) Brussels I reg., the recent work by Y. Farah, ‘Allocation of jurisdiction and the internet in EU law’ (2008) 33 European Law Review 257 – 270.