On 19 and 20 April the JHA Council will hold its 2794th session in Luxembourg, under the German Presidency. On the agenda for the “Justice” issues, scheduled for Thursday 19th, there are a number of points dealing with cooperation in civil law matters, both under the “A” items (on which the Council decides without discussion, since an agreement has previously been found in the Committee of Permanent Representatives – COREPER) and under the “B” items (that are actively debated in the Council: see the agenda for the meeting).

As regards the “A” points, two important deliberations will take place on private international law issues (see the list of public deliberations released by the Press Office of the Council):

• Amended proposal for a Regulation of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, amending Council Regulation (EC) No 1348/2000: the amended proposal adapts the original Commission proposal to the general agreement of the Council and to the opinion of the European Parliament in a codified version;
• Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations (Rome II): Non-approval of the European Parliament’s amendment (see the related section of our site).

As regards the “B” items, the first three points deal with cooperation in civil matters (Rome I, Rome III and the Regulation on maintenance obligations); in addition, as a last point the Council will discuss further proceedings of the works on a Common Frame of Reference for European contract law.

Here’s an excerpt of the Background Note prepared by the Press Service of the Council: for each draft instrument we have added the latest available Council public document.

Rome III (Jurisdiction and applicable law in matrimonial matters: see the related section of our site)

At the informal meeting in January 2007 in Dresden, ministers underlined the importance of family law issues for the creation of a true area of justice, as there are more and more families where the spouses come from different countries.

Some progress has been achieved since then on this proposal in the sense that a common understanding on a number of important questions is emerging among a majority of Member States. Some delegations have doubts about the added value of this proposal, but the Presidency believes that it is important to continue the discussions in order to find a solution acceptable to all delegations.

The Council will discuss a number of issues with a view to clarifying certain elements of this file and to finding a solution acceptable to all delegations. In particular, the Council will discuss the question of the choice of court by the parties and the choice of applicable law.

Latest available document of the Council: doc. n. 5274/07 of 12 January 2007 (text of the Regulation as drafted by the Presidency on the basis of the meetings of the Committee on Civil Law Matters (Rome III) and the comments made by Member States delegations).

Jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (see our related posts here and here)

The Council is expected to agree on some political guidelines on issues of particular importance for the continuation of the work on this draft regulation. […]

[T]he shared will to move forward in such an important area as maintenance obligations was highlighted at the informal meeting of Justice and Home Affairs Ministers in Dresden on 15 and 16 January 2007.

The Council should focus its discussion on:

• the abolition of the exequatur procedure for all maintenance obligation decisions covered by the Regulation, which would reduce the costs involved in enforcement of maintenance decisions and improve the position of creditors by speeding up enforcement of decisions and making them more easily portable within the European Union;
• the introduction of a system of cooperation between central authorities in order to facilitate application of the Regulation;
• making it clear in a recital that the Regulation applies only in situations having cross-border implications and hence an international aspect, and
• the conditions on which Member State may retain or conclude agreements with third countries in this particular area.

Latest available document of the Council: doc. n. 16830/06 of 20 December 2006 (available in German: text of the Regulation as drafted by the Finnish and German Presidency on the basis of the meetings of the Committee on Civil Law Matters (Maintenance Obligations) and the comments made by Member States delegations).

Rome I (see the related section of our site)

[…] Although most of the text is agreed by all delegations, there are some elements on which there is still not yet unanimity. With this aim, the Council is expected to examine a compromise package submitted by the Presidency.

The following questions will be particularly examined: the principle of choice of law by the parties to the contact, the law applicable in the absence of choice and individual employment contracts.

Latest available document of the Council: doc. n. 6935/07 of 2 March 2007 (French or German text of the Regulation as drafted by the Presidency on the basis of the meetings of the Committee on Civil Law Matters (Rome I) and the comments made by Member States delegations).

European Contract Law

The Council is invited to decide that a Council position on a common frame of reference for European contract law, in particular as regards its purpose, content and scope, is developed and defined. […]

In 2006 the European Parliament expressed its views in two Resolutions. The Commission has announced that it will submit a second Progress Report on European Contract Law and the Acquis Review. The Research Network will produce a draft by the end of 2007. In view of the importance of the project the Presidency considers that it would be appropriate for the Council to develop and define its own position. In this context, the Presidency suggests that the Council identifies the issues that require careful examination and proposes a method of work within the Council preparatory bodies.

(Many thanks to Martin George, for his collaboration in hunting down some of the documents referred to above)

The new issue of the Journal of Private International Law, Volume 3, Issue 1 (April 2007), will be published shortly. The contents are (click on the links below to view the abstract):

Canada and the US Contemplate Changes to Foreign-Judgment Enforcement by Vaughan Black (Professor, Dalhousie Law School, Halifax)

The Rome I Proposal by Ole Lando & Peter Arnt Nielson (Copenhagen Business School)

Third-Country Mandatory Rules in the Law Applicable to Contractual Obligations: So Long, Farewell, Auf Wiedersehen, Adieu? by Andrew Dickinson (Consultant, Clifford Chance LLP; Visiting Fellow in Private International Law, BIICL)

Choice-of-Law Rules for Electronic Consumer Contracts: Replacement of The Rome Convention by the Rome I Regulation by Lorna Gillies (Lecturer in Law, University of Leicester)

Parties’ Choice of Law in E-Consumer Contracts by Zheng Tang (Lecturer in Law, University of Aberdeen)

Choice of Law in Maritime Torts by Martin P. George (PhD Candidate & Postgraduate Teaching Assistant, University of Birmingham)

The European Convention on Human Rights and English Private International Law by Ben Juratowitch (DPhil candidate, University of Oxford)

Child Abduction: Convention “Rights of Custody” – Who Decides? An Anglo-Spanish Perspective by Kisch Beevers (University of Sheffield) & Javier Peréz Milla (University of Zaragoza)

Book Review: J. Meeusen, M. Pertegàs and G. Straetmans (eds) Enforcement of International Contracts in the European Union: Convergence and Divergence between Brussels I and Rome I by Lorna Gillies (Lecturer in Law, University of Leicester)

For those who haven’t yet subscribed to the Journal of Private International Law, subscription information can be found here. In addition to the Journal itself, you will also receive online access to all of the articles (current subscribers will be able to download the articles linked to above straight away).

A very interesting report of the working sessions of the 16th Annual meeting of the European Group for Private International Law (GEDIP-EGPIL), held in Coimbra on 22-24 September 2006, has been recently published on the new site of the Group. The summary (in French) has been compiled by N. Ascensão Silva, R. Pereira Dias and G. Rocha Ribeiro (University of Coimbra).

Here’s a list of the matters discussed by the Group, as organized by the authors (in brackets the rapporteurs; our translation and free adaptation from French):

I. EC Private International Law and Third States:

1. The external competence question (C. Kessedjan);
2. The revision of the Lugano Convention (A. Borrás).

II. The Commission’s “Rome III” Proposal and the Green Paper on matrimonial property regimes:

1. The Rome III Proposal (A. Borrás) [on the Green Paper on applicable law and jurisdiction in divorce matters, see also the report of M. Struycken presented at the 2005 meeting (Chania) of the Group and the draft articles on applicable law discussed at the 2003 meeting (Wien)];
2. The Green Paper on matrimonial property regimes (K. Kreuzer) (see also the Response of the EGPIL to the Green Paper, prepared after the meeting of Coimbra).

III. The “Rome I” Proposal [on the revision of the Rome Convention, see also a number of previous proposals and comments on the Group’s site]:

1. Article 3(5) of the Rome I Proposal (Choice of the law of a Third State and mandatory rules of Community law) (E. Jayme);
2. The Report of the Financial Market Law Committee on «Rome I» Proposal («Legal assessment of the conversion of the Rome Convention to Community instrument and the provisions of the proposed Rome I Regulation») (T. C. Hartley).

IV. The mutual recognition method (P. Lagarde) (in particular, the ECJ cases Standesamt Stadt Niebüll/Grunkin, C-96/04 and C-353/06).

V. The codification of European Private International Law (M. Fallon).

VI. Current events:

1. Private international law and human rights – ECHR case Eskinazi and Chelouche v. Turkey (application no. 14600/05) (P. Kinsch);
2. New developments in EC secondary legislation (E. Jayme and C. Kohler);
3. New developments in the Hague Conference (H. van Loon);
4. Current status of EC projects in Private International Law matters (M. Francisco Fonseca).

The report is available here, along with the minutes of all the previous meetings of the Group, since 1991, and a number of related documents and proposals. Highly recommended.

Since 1 Januar 2007, Germany has a new authority dealing with questions of international legal relations and international legal assistance which had fallen before in the competence of the Federal Public Prosecutor (Generalbundesanwalt) – the Bundesamt für Justiz.

Thus, the Bundesamt für Justiz is now inter alia the competent authority according to:

• the 1980 Hague Convention on the Civil Aspects of International Child Abduction
• the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption
• the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children
• the Brussels II bis Regulation

In addition, the Bundesamt für Justiz 

• is the German contact point in the European Judicial Network (EJN)
• is competent to refer questions on the interpretation of the Brussels Convention and the Rome Convention on the Law Applicable to Contractual Obligations to the ECJ
• will be the central authority according to the Hague Convention on the International Protection of Adults as soon as it will enter into force (the German Parliament adopted the implementing law on 14 December 2006 – however, for the entry into force of this Convention it is necessary that, besides Germany, a third State ratifies the Convention. So far, only the UK has ratified the Convention (only for Scotland))

Cf. with regard to the competences of this new authority the article by Rolf Wagner, Das Bundesamt für Justiz, IPRax 2007, 87

The German Presidency has produced, in accordance with its obligations under Article 2, para. 5, of the Council’s rules of procedure, the indicative provisional agendas for Council meetings prepared by the Permanent Representatives Committee for the period up to 30 June 2007. Scrolling through the agendas, the various proposed Rome Regulations (I, II & III) are all timetabled (along with what they hope to achieve), as well as a few other related matters:

Justice and Home Affairs Council, Brussels, 15/16 February 2007 (p. 24)

• (Possible) Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations (Rome II) ? Adoption of the amended common position
• (Possible) Proposal for a Regulation of the European Parliament and of the Council establishing a European Small Claims Procedure ? Adoption
• (Possible) Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters ? Adoption of the Common position

Justice and Home Affairs Council, Luxembourg, 19/20 April 2007 (p.26)

• (Possible) Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations (Rome II) ? Adoption of the amended common position
• Proposal for a Regulation of the European Parliament and the Council on the law applicable to contractual obligations (Rome I) ? Debate on certain issues
• Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decision and cooperation in matters relating to maintenance obligations (Maintenance regulation) ? Conclusions on certain issues
• (Possible) Proposal for a Council Regulation amending Regulation (EC) N° 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters (Rome III) ? Debate on certain issues

Justice and Home Affairs Council, Luxembourg, 12/13 June 2007 (p. 28)

• Proposal for a Regulation of the European Parliament and the Council on the law applicable to contractual obligations (Rome I) ? Debate on certain issues or general agreement
• (possible) Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decision and cooperation in matters relating to maintenance obligations. VO Unterhalt ? Conclusions on certain issues
• Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters (Rome III) ? Debate on certain issues

You can find the full list of provisional agendas here.

It seems that the European Commission’s proposal to establish common rules on the applicable laws in cross-border divorce (“Rome III”) has met with widespread criticism in Brussels amongst the EU member states. The proposal sets out which national legislation should apply in the case of a couple of two nationalities or a couple living in their non-native country, such as an Irish and Finnish pair of EU civil servants living in Brussels. One may immediately ask why the EU needs to legislate for this at all. The Commission answer thus:

An “international” couple who want to divorce are subject to the jurisdiction rules of the new Brussels II Regulation, which allow the spouses to choose between several alternative grounds of jurisdiction (see point 3.6 of the attached working document). Once a divorce proceeding is brought before the courts of a Member State, the applicable law is determined pursuant to the national conflict-of-law rules of that State. There are significant differences between the national conflict-of-law rules (see point 3.4 of the attached working document). The combination of different conflict-of-law rules and the current jurisdiction rules may give rise to a number of problems in the context of “international” divorces. Apart from the lack of legal certainty and flexibility, the current situation may also lead to results that do not correspond to the legitimate expectations of citizens. Moreover, Community citizens who are resident in a third State may face difficulties in finding a competent divorce court and to have a divorce judgment issued by a court in a third State recognised in their respective Member States of origin. There is finally a risk of “rush to court” under the current situation (Green Paper, p.3).

The Commission’s proposal for the default choice of law rule?

The objective would be to ensure that a divorce is governed according to the legal order with which it has the closest connection. A number of connecting factors, which are commonly used in international instruments and national conflict laws, could be envisaged, such as the spouses’ last common habitual residence, the common nationality of the spouses, the last common nationality if one spouse still retains it or “lex fori”.

The Swedish Justice Ministry study into Rome III highlights some of the causes for concern; in cases involving non-EU citizens or non-EU states, Rome III would also favour a legislature to which both spouses have a strong connection. For exmaple, a Swedish woman marries an Iranian man in Sweden and emigrates to Iran but after several years decides to leave both her spouse and his country and go home. “The proposal means that Iranian divorce law would be applied by the Swedish court,” the justice ministry study states.

Throwing all the different approaches to marriage and divorce into one big melting pot was bound to cause controversies – issues such as forced marriage, or the legality of divorce at all (it is illegal in Malta, for exmaple), or the minimum “separation”period, are all different in each member state, and member states will not want to water down their divoce laws. The Irish Ministry for Justice has, in its press release on the Irish opt-out from Rome III, stated that:

If Ireland were to adopt and implement this measure, this would allow EU nationals resident in Ireland to obtain a divorce in our courts on substantially different and less onerous grounds than that provided for in our constitution.

The cost, and added time needed for finding foreign experts is also a worry, and one of the reasons behind the UK’s opt-out. All in all, Rome III is not the most popular green paper in the playground right now. Is the criticism justified? Comments welcome.

Update: Mark Harper (Withers) has written a summary on the UK Government’s opt-out of Rome III at legalweek.com. He concludes:

This failure by the Government to opt in will mean a two-speed Europe when it comes to family law. The rest of Europe will move forward towards harmonisation of these rules, as opposed to harmonising substantive law, and we will be left behind.

From 9th to 10th November a conference will take place at the Academy of European Law (ERA) in Trier, Germany where recent developments in private international law will be presented. 

Here are the areas which will be discussed:

• Legal and Practical Consequences of Landmark ECJ Decisions (e.g. Lugano Convention Opinion (1/03); Owusu)
• The European Enforcement Order in Judicial Practice
• (The Revision of) the Regulation on Service of Documents
• Cross-border Attachment of Bank Accounts
• International Insolvency Law
• Hague Convention of 30 June 2005 on Choice of Court Agreements
• European Payment Order
• Towards a European Small Claims Procedure – The State of Play
• Future Developments in European Private International Law: Rome I & Rome II

See for the full programme, the list of speakers and further information the website of ERA.

The House of Commons Select Committee on European Scrutiny has produced its thirty-seventh report. It includes discussion of the

• Draft Regulation on the law applicable to contractual obligations (Rome I),
• Commission Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition, and the
• Draft Council Regulation amending Regulation (EC) No. 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.

The section on the Draft Regulation on the law applicable to contractual obligations (Rome I) contains an interesting, if out-of-date, appraisal of the Rome I Proposal by Parliamentary Under-Secretary of State at the Department for Constitutional Affairs (Baroness Ashton of Upholland) in a letter dated 20th July 2006. The Under-Secretary of State's objections to Rome I follow the usual pattern, the legislative bones of contention include: Article 1 (scope); Article 3 (freedom of choice); Article 4 (applicable law in the absence of choice); Article 5 (consumer contracts); Article 7 (agency); Article 8(3) (application of the mandatory rules of third countries); Article 13 (voluntary assignment and contractual subrogation) and Article 21 (States with more than one legal system).

Article 8(3) (application of the mandatory rules of third countries) is, of course, cited by the Under-Secretary of State as "the greatest single reason behind the [UK] Governments decision not to opt-in under our Protocol". The Select Committee agreed with the Under-Secretary's evaluation, stating:

We welcome the Government's decision not to opt into this proposal. We also agree with the Government that notwithstanding this decision the United Kingdom should try to participate constructively in the framing of the proposed legal instrument. We ask the Minister to keep us informed as negotiations continue.

With its deletion in both the JURI report (to which the Under-Secretary alludes in her letter), and the Finnish Presidency text produced on the basis of meetings in the Committee of Civil Law (we do not believe the Finnish Presidency Rome I text is publicly available yet), a partial thawing of the attitude towards Rome I may be on the horizon in the UK executive.

In response to the Commission Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition, Government Minister Harriet Harman "cautiously" states:

This is an area of very considerable technical complexity, and the differences in the law relating to matrimonial property differs significantly among the various Member States. The relatively high-level questions raised in the Green Paper do not obviously reflect this concern. The Government will consider how best to respond to the Green Paper and will keep the Scrutiny Committees informed.

The Scrutiny Committee's equally cautious response:

We ask the Minister to explain under what legal base, if any, the Commission may bring forward future legislative measures pertaining to the applicable law regimes governing trans-national matrimonial property proceedings. We also ask the Minister for further information as and when the Government's position on the specific questions raised by the Commission crystallises, and in any event, before the Government formally replies to the Commission.

The Draft Council Regulation amending Regulation (EC) No. 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters also receives a mixed welcome, with the Parliamentary Under-Secretary of State raising concerns about the applicable law under the Draft Regulation:

A number of other Member States have rules which allow foreign law to apply to family proceedings. However, family courts in the UK are not accustomed to applying foreign law. The Government's approach is that such provisions are not obviously necessary here and that the law of the forum should continue to apply.

"The Government is concerned that to apply the law of a foreign jurisdiction in the UK could involve considerable practical difficulties, cause delay and increase costs, because it may be necessary to call expert evidence as to the foreign law. It is Government policy that the costs to parties should be reasonable. The Government is not at this point wholly persuaded that there are such problems with the lex fori principle to justify departure from that principle.

The response by the Scrutiny Committee is fairly negative as well:

…we share the Government's reservations about the practical difficulties involved in the application of a foreign law in matrimonial proceedings. We ask the Ministers if the Government's thinking in this respect has changed and, if not, if the Government nevertheless intends to opt into this proposal under Title IV.

…we are concerned in particular about the added complexity and additional costs of litigation likely to flow from applying foreign law not only in the courts of England and Wales but also in Scotland and Northern Ireland.

Finally, we note that legal problems associated with "international marriages" are not restricted to marriages between spouses of EU nationalities. We therefore ask the Minister if the Government agrees that the Hague Conference on Private International Law would more appropriately deal with this issue.

All comments welcome.

A few short articles on various aspects of private international law in family law have been published this week. They are:

James Copson (Withers LLP), Alain Berger (Berger Recordon & de Saugy, Geneva) and Alexandre Boiche (Cabinet Veronique Chaveau, Paris), "Cross-border Matrimonial Law" Family Law Journal (2006) No.60 October Pages 3-5. The abstract reads:

This, the second in a series of international articles, uses a case study involving an international couple who own properties in England, Switzerland and France and who are divorcing after a long marriage to explain how the choice of jurisdiction can effect the financial award made. Summarises the approach adopted in each jurisdiction to: (1) the division of assets, including the effect of prenuptial agreements; (2) applications for compensation for loss of the ability to share the other parties future income; (3) child support; and (4) taxation of awards. Outlines the position under European law to determining habitual residence and to the effect of competing proceedings.

Suzanne Kingston and Faye Fitzsimmons (Dawsons), "Miller and McFarlane – the international aspects" Family Law Journal  (2006) No.60 October Pages 16-18. The abstract reads:

This, the second of two articles considering the House of Lords judgment in Miller v Miller, discusses the potential for the decision to lead to an increase in forum shopping within the EU in divorce cases involving international couples with substantial assets. Uses a case study involving German nationals to compare the financial consequences of divorce proceedings commenced in England with those resulting from proceedings being issued in Germany. Considers the impact the proposed EU Regulation, known as Rome III, will have on choice of jurisdiction.

Keith Gordon (Atlas Chambers), "Jurisdiction jigsaw" Solicitors Journal (2006) Vol.150 No.41 Pages 1378,1380. The abstract reads:

Explains the importance of the law on domicile for applications made under the Inheritance (Provision for Family and Dependants) Act 1975 and other areas of the law. Considers the distinction between domicile of origin and domicile of choice, providing examples of a revived domicile of origin and the acquisition of a new domicile of choice. Notes the need to prove a permanent and indefinite intention to reside in a domicile of choice.

All of the articles can be found on Lawtel.

Diana Wallis MEP, on behalf of the ALDE group, is holding a seminar on 17 October 2006 in the European Parliament. The seminar is entitled: 'A coherent legal regime for EU media – Balancing liberties. The right to be let alone v. freedom of speech'. As Ms Wallis' website states,

This event will gather experts, academics and Members of the European Parliament to discuss the current legal regime for EU media and explore possible options for the future, in particular with regard to the issue of applicable law. This seminar is set against the background of the Commission's rejection of Parliament's first reading formulation on defamation and the withdrawal of these provisions from the draft Regulation. The second reading of Rome II scheduled for the end of 2006 also coincides with the discussions on Television without Frontiers and the review of Brussels I and the E-commerce Directive.

DRAFT PROGRAMME

12.45 – 13.00: Introductory Welcome

Session 1. Chair: Diana Wallis MEP, Rapporteur on Rome II

13.00 -13.30: European Private International Law and the media: relationship between existing instruments

• Speakers: Gregory Paulger, DG 'Information, Society and Media', European Commission
• Claudia Hahn, DG 'Justice and Home Affairs', European Commission

13.30 – 14.00: Jurisdiction, applicable law and the country of origin principle

• Speakers: Horatia Muir Watts, Université Paris I Panthéon Sorbonne
• Professor Paul Beaumont, University of Aberdeen

14.00 – 14.30: Q&A

14.30 – 14.50: Tea and coffee break

Session 2. Chair: Jean-Marie Cavada MEP, Chairman of LIBE

14.50 – 15.20: Applicable law to the violation of personality rights – a quest for reasonableness?

• Speakers: Marie-Christine de Perçin, vice chairperson of Presse-Liberté
• Speaker invited

15.20 – 15.50: Regulating the media: what role for the EU?

• Speakers: Tim Sutter, OFCOM
• Cecilia Renfors, Swedish audiovisual board

15.50 – 16.20: Q&A

16.20 – 16.30: Conclusions

The event will take place on Tuesday 17 October 2006 from 12.45 to 16.30 at European Parliament, Brussels, room ASP 3G3. More information on attending the event can be found here.