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II. The Accession of the European Community to the Hague Conference on Private International Law

Published online by Cambridge University Press:  17 January 2008

Peter McEleavy  and
Andrea Schulz
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Abstract

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Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 56 , Issue 4 , October 2007 , pp. 939 - 949
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

1 Montenegro had submitted a declaration of succession to Yugoslavia's acceptance of the Statute on 1 March 2007, but succession was only established retroactively (with effect as of 1 March 2007) on 15 May 2007. Today HCCH counts 67 Members.

2 For the text of the Statute in its 1951 version as well as in its amended version, see the HCCH website at <http://www.hcch.net> under ‘Conventions’.

3 Entry into force of the Statute.

4 Entry into force of the EC Treaty as revised by the Treaty of Amsterdam, [1997] OJ C 340/1 (Amsterdam Treaty), the relevance of which will be discussed below.

5 Day on which the EC joined the HCCH (but see also n 1).

6 Art 1 of the Statute.

7 For a list of the 36 Conventions elaborated since 1951 and their respective status of signatures, ratifications and accessions, see <http://www.hcch.net> under ‘Conventions’.

8 Art 61 et seq, in particular Art 65, of the Amsterdam Treaty (n 4).

9 See in particular Case 22/70 Commission v Council [1971] ECR 263Google Scholar; Opinion 1/76 European laying-up fund [1977] ECR 741Google Scholar; Opinion 1/94 WTO [1994] ECR I–5267Google Scholar and the Open Skies decisions: Cases C–467/98 Commission v Denmark [2002] ECR I–9519Google Scholar; C–468/98 Commission v Sweden [2002] ECR I–9575Google Scholar; C–469/98 Commission v Finland [2002] ECR I–9627Google Scholar; C–471/98 Commission v Belgium [2002] ECR I–9681Google Scholar; C–472/98 Commission v Luxembourg [2002] ECR I–9741Google Scholar; C–475/98 Commission v Austria [2002] ECR I-9797Google Scholar and C–476/98 Commission v Germany [2002] ECR I–9855Google Scholar; Opinion 1/03 Lugano Convention [2006] ECR I–1145Google Scholar.

10 On the origins of the project, see Pfund, PH, ‘Contributing to Progressive Development of Private International Law, The International Process and the United States Approach’ (1994) 249 Recueil des cours 9, 83Google Scholar; Schulz, A, ‘International Organizations: The Global Playing Field for US–EU Cooperation in Private Law Instruments’ in Brand, RA (ed), Private Law, Private International Law, & Judicial Cooperation in the EU-US Relationship (Thomson West, Eagan, Minnesota, 2005) 257.Google Scholar

11 The text of the preliminary draft Convention 1999 and its Explanatory Report by P Nygh and F Pocar have been published in Preliminary Document No 11, available at <http://www.hcch.net> under ‘Conventions’, ‘Convention 37’ and ‘Preliminary Documents’. For further details, see the Report, ibid 25 et seq.

12 This is the Conference's steering body which has been meeting annually since 2002 and decides upon the work programme and policy directions of the Conference between Diplomatic Sessions. Under the new Statute it is called ‘Council on General Affairs and Policy’.

13 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968, ‘1998’ OJ C 27/1.

14 See Proposal of the Commission, COM(1999) 348 final, 14 July 1999, [1999] OJ C 376/1.Google Scholar

15 ‘2001’ OJ L 12/1.Google Scholar Upon its entry into force, the Regulation applied for 14 of the then 15 EC Member States (except Denmark). Since 1 May 2004, the Regulation also binds the 10 new Member States that joined on that date, and since their accession to the EC on 1 January 2007 also Bulgaria and Romania. The Brussels Convention was, however, still in force between Denmark, which due to Protocol No 5 to the EC Treaty as revised by the Treaty of Amsterdam is not bound by Community law in this area, and the 14 EC Member States Parties to it. An agreement between the Community and Denmark along the lines of the Brussels I Regulation replaced it on 1 July 2007, [2005] OJ L 299/62Google Scholar and [2007] OJ L 94/70.Google Scholar

16 In the meantime, on 7 February 2006 the ECJ, upon request of the Council, issued its Opinion on external Community competence for the revised Lugano Convention (n 9) from which it may be concluded that also for the negotiation and conclusion of the Convention on Choice of Court Agreements there is exclusive Community competence.

17 For a detailed discussion of the development of external Community competence during these negotiations and its impact on them, see the second part (written by the author of this article) of van Loon, H and Schulz, A, ‘The European Community and the Hague Conference on Private International Law’ in Martenczuk, B and van Thiel, S (eds), Justice, Liberty, Security: New Challenges for the External Relations of the European Union (Institute for European Studies of the Free University of Brusssels, Brussels, forthcoming 2007Google Scholar).

18 See already the list of observer organizations including the EEC in the Actes et Documents de la Neuvième session–5 au 26 octobre 1960, Tome I, Matières diverses, 15.

19 This distinction to a large extent lost its importance when the Conference moved to consensus-based negotiations in 2000.

20 See the Conclusions of the Special Commission, available at <http://www.hcch.net> under ‘Work in Progress’, ‘General Affairs’, 10.

21 The group included, in addition to its Chair, diplomatic representatives, government officials, judges and academics from Australia, Belgium, Brazil, Canada, Egypt, France, Germany, Italy, Japan, Netherlands, Russia, Spain, Sweden, the United Kingdom, and the United States of America, as well as representatives of the European Community.

22 See Conclusions of the Special Commission on General Affairs and Policy of the Conference held from 6 to 8 April 2004, available at <http://www.hcch.net> under ‘Work in Progress’, ‘General Affairs’, 10.

23 See Preliminary Document No 32B of May 2005 for the attention of the Twentieth Session, available at <http://www.hcch.net> under ‘Work in Progress’, ‘General Affairs’.

24 Available at <http://www.hcch.net/upload/finalact20e.pdf>.

25 The Eurasian Economic Community counts Belarus, Kazakhstan, Kyrgyzstan, Russia, Tajikistan and Uzbekistan as its Members. Armenia, Moldova and Ukraine are observers. It is a trans-regional organization mainly focused on economic matters but which also addresses other issues, eg the development of common guidelines on border security.

26 See Basic Texts of the Food and Agricultural Organization of the United Nations, Volumes I and II-2006 edition, Vol I, A, Constitution, available at <http://www.fao.org/docrep/ 009/j8038e/j8038e00.htm>. Further examples of the use of the term ‘REIO’ in ‘ordinary’ conventions other than constitutions of intergovernmental organizations include the Hague Convention of 5 July 2006 on the Law Applicable to Certain Rights in respect of Securities held with an Intermediary (Art 18) and the UNIDROIT Convention of 16 November 2001 on International Interests in Mobile Equipment (Art 48).

27 See the Declaration available at <http://www.hcch.net> under ‘Conventions’, ‘Statute of the Hague Conference’, ‘Status Table’. In the list of Members, click on the ‘D’ in the row concerning the European Community.

28 Art II, paras 5–8 of the FAO Constitution, available at <http://www.fao.org/docrep/009/j8038e/j8038e00.htm>, provided the basis for these rules. However, the FAO General Rules of the Organisation (Art XLI, ibid), the Provisional Guidelines for the participation of the EC in FAO meetings (available on the website of the Hague Conference at <http://www.hcch.net/upload/wop/genaff_pd21be.pdf>, 18–23) 1–6, and the Rules of Procedure of the Codex Alimentarius Commission (CAC), Rule II (available at <ftp://ftp.fao.org/codex/Publications/ProcManuals/Manual_15e.pdf>, 6–19, 6–7), a body jointly constituted by FAO and WHO, regulate in considerably more detail how within the FAO and the CAC the REIO/EC competences must be declared and exercised. Under these regulations there is an obligation for either the REIO or its Member States to indicate, preferably at least two working days before any meeting, which has competence in respect of each agenda item; failure to do so will prevent the EC from participating in the meeting. Such level of detail was considered impractical for evolving negotiations of a legislative character as they take place within the Hague Conference, in particular in light of the fact that any resulting Convention will also require a subsequent decision on signature and ratification, or accession, by any potential future Party, thereby necessarily requiring approval of the Council of the European Union.

29 It is worth mentioning in this context that in practice it is not so much the fact of the EC being a Member of the Hague Conference or not which has determined meeting participation of EC Member States in recent times. Community external competence seems to be the decisive factor, and some smaller (new) EC Member States which perhaps do not feel strongly about a particular topic have now sometimes limited their involvement to participation in the EC coordination meeting(s) in Brussels prior to the meeting in The Hague without then sending a delegate to The Hague. Other (older and larger) EC Member States have sometimes preferred to reduce their participation in HCCH meetings after having realized that their position was not shared within the EC and therefore not presented in the plenary discussions. Community discipline would prevent them from raising their position in plenary themselves.

30 The WIPO Rules of Procedure require the actual presence of the EC Member States at the time of voting. This may be explained by the fact that the EC is not a Member of WIPO but WIPO's Rules of Procedure nevertheless take account of Community external competence.

31 Above, n 25.