SINGLE MARKET:
EU GAINS NEW COMPETENCIES IN
JUSTIFIED AS “NECESSARY” FOR THE INTERNAL MARKET
[ARTICLE 65]
|
AMENDMENT TO: Treaty of |
Policy Area:
Treaty=
on
the Functioning of the European Union, Part Three Policies and Internal Act=
ions
of the Union, Title IV – Area of Freedom, security and Justice, Chapt=
er 3
Judicial cooperation in civil matters, Article 65
Amendment:
Clause=
2,
page 1, line 12, after ‘excluding’ insert –
‘=
;(i) Article 2, paragraph 66, replacement Chapter 3 and
Article 65 TEC (TFEU) relating to judicial cooperation in civil matters; an=
d
“JUDICIAL COOPERATION IN CIVIL MATTERS
66) Article 65 shall be replaced by the following Chapte=
r 3
and Article 65:
"CHAPTER 3 JUDICIAL COOPERATION IN CIVIL MATTERS
ARTICLE 65
1. The
2. For the purposes of paragraph 1, the European Parliam=
ent
and the Council, acting in accordance with the ordinary legislative procedu=
re,
shall adopt measures, particularly when necessary for the proper functionin=
g of
the internal market, aimed at ensuring:
(a) the mutual recognition an=
d enforcement
between Member States of judgments and of decisions in extrajudicial cases;=
(b) the cross-border service =
of
judicial and extrajudicial documents;
(c) the compatibility of the =
rules
applicable in the Member States concerning conflict of laws and of
jurisdiction;
(d) cooperation in the taking=
of
evidence;
(e) effective access to justi=
ce;
(f) the elimination of obstac=
les to
the proper functioning of civil proceedings, if necessary by promoting the
compatibility of the rules on civil procedure applicable in the Member Stat=
es;
(g) the development of altern=
ative
methods of dispute settlement;
(h) support for the training =
of the
judiciary and judicial staff.
3. Notwithstanding paragraph 2, measures concerning fami=
ly
law with cross-border implications shall be established by the Council, act=
ing
in accordance with a special legislative procedure. The Council shall act
unanimously after consulting the European Parliament. The Council, on a
proposal from the Commission, may adopt a decision determining those aspect=
s of
family law with cross-border implications which may be the subject of acts
adopted by the ordinary legislative procedure. The Council shall act
unanimously after consulting the European Parliament.
The proposal referred to in the second subparagraph shal=
l be
notified to the national Parliaments. If a national Parliament makes known =
its
opposition within six months of the date of such notification, the decision
shall not be adopted. In the absence of opposition, the Council may adopt t=
he
decision."
Consolidated Treaty Article(s):
“Article 65
Measures in the field of judicial cooperation in civil
matters having cross-border implications, to betaken in accordance with Art=
icle
67 and in so far as necessary for the proper functioning of the internal ma=
rket,
shall include:
(a) improving and simplifying=
:
— the system for cross-=
border
service of judicial and extrajudicial documents,
— cooperation in the ta=
king
of evidence,
— the recognition and
enforcement of decisions in civil and commercial cases, including decisions=
in
extrajudicial cases;
(b) promoting the compatibili=
ty of
the rules applicable in the Member States concerning the conflict of laws a=
nd
of jurisdiction;
(c) eliminating obstacles to =
the
good functioning of civil proceedings, if necessary by promoting the
compatibility of the rules on civil procedure applicable in the Member Stat=
es.”
Expl=
anation:
This Artic=
le
will lead to fundamental changes to the way in which the EU governs =
judicial cooperati=
on in
civil matters amongst the 27 Member States. It has continued to assert that=
the
internal market is the necessary basis upon which to justify judicial
cooperation in this area. Wherea=
s the
existing Article 65 TEC provides for simple “measures in the f=
ield
of judicial cooperation in civil matters having cross-border implications, =
to
be taken … for the proper functioning of the internal market”, =
the
new Article 65 (1) recognises the principle of =
mutual
recognition of judicial and extrajudicial decisions as a fundamental corner=
stone
of judicial cooperation in civil matters.
It is of direct relevance that at the=
Tampere European Council
in 1999, EU leaders stressed that “Enhanced
mutual recognition of judicial decisions and judgements and the necessary
approximation of legislation would facilitate co-operation between authorit=
ies
and the judicial protection of individual rights”, hence the European
Council endorsed “the principle of mutual recognition which, in its v=
iew,
would become the cornerstone of judicial co-operation in both civil and
criminal matters within the Union. The principle should apply both to judgm=
ents
and to other decisions of judicial authorities.” It means that jud=
icial
decisions shall be recognised and enforced in a=
nother
The new Article 65 (1) states that &#=
8220;The
Union shall develop judicial cooperation in civil matters having cross-bord=
er
implications, based on the principle of mutual recognition of judgments and=
of
decisions in extrajudicial cases. Such cooperation may include the adoption=
of
measures for the approximation of the laws and regulations of the Member
States.” This new provision expressly refers to
“measures for the approximation of the laws and regulations of the Me=
mber
States.” This is very important, especially as the fields in which th=
e
Presently,
the Council, acting by QMV, together with the European Parliament through t=
he
ordinary legislative procedure (co-decision procedure) shall adopt measures
concerning the judicial cooperation in civil matters with a cross border di=
mension.
Although it was arguable that the criterion of the internal market has been=
artificial
(particularly in regards to the C=
ouncil
Regulation concerning jurisdiction and the recognition and enforcement of
judgments in matrimonial matters and in matters of parental responsibility)=
,
under the present Article 65 TEC, measures concerning the judicial cooperat=
ion in
civil matters having a cross-border dimension can only be adopted “in=
so
far as necessary for the proper functioning of the internal market.” =
This
changes under the Lisbon Treaty and the limitation is removed.
The
removal of a limitation means that
Presently,
EU de=
cision-making
concerning family law is subject to unanimity and consultation procedure. T=
he
Lisbon Treaty in Article 65 (3) TFEU maintains the requirement that measures
concerning family law with cross-border implications shall be adopted by the
Council acting unanimously after consulting the European Parliament. Howeve=
r, under
the present Article 67(2) TEC, t=
he Council
acting unanimously after consulting the European Parliament, is allowed to =
apply
QMV and co-decision procedures to family law, after the transition period of
five years in which the Treaty of Amsterdam has entered into force. Under
Article 65 (3) of the Lisbon Treaty, the Council acting unanimously =
and
after consulting the European Parliament may move those aspects of family l=
aw with
cross border implications from unanimity and consultation procedure to QMV =
and
ordinary legislative procedure (co-decision). In this move, the European
Parliament will have a larger influential role and the Member States will l=
ose
their veto powers. The Lisbon Treaty introduces the requirement of notifica=
tion
of the proposal to the National Parliaments. However,
the Government must allow sufficient time for the Parliament to vote against
such proposals – otherwise it goes through automatically.
This
provision entails further harmonisation of aspe=
cts of
procedural law and the harmonisation of conflicting laws and rules in the absence of choice by the partie=
s.
It is likely to also lead to massive harmonisation of rules of natio=
nal
substantive law such as substantive law on divorce, contract law, and natio=
nal
law governing succession and wills which are currently and entirely within =
the
power of Member States. A difficulty concerning these measure=
s is
cross-border implications – the measures are likely to affect the wor=
k of
national legal and administrative systems. Moreover, the Commission is like=
ly
to put forward proposals that affect purely national situations. The