ECJ, OPINION 1/13 - Presentation

CJ, Opinion 1/13 14/10/2014“Convention on the civil aspects of international child abduction”

Nina Metljak & Carlo Biz“The external relations of the EU: International and European law dimension” March 6th, 2015

Relevant facts I

Carlo Biz

?

Relevant facts IICarlo Biz

● the Hague Conference on Private International Law: a key organization for conflict of laws and jurisdiction since 1893

● 1980 Hague Convention on Child Abduction: all MS are part of it - the EU is not (but it is a member of the HCCH since 2007)

● Between 2007 and 2011 Armenia, Albania, Andorra, Seychelles, Morocco, Singapore, Gabon and Russia deposited instruments of accession to the Convention

● 21/12/2011: eight proposals of the Commission for decisions of the Council concerning declarations of acceptance (to deposit simultaneously in the interest of the Union) - legal basis: art. 218 TFEU and art. 81(3) TFEU

Relevant facts IIICarlo Biz

● 22/11/2012: the Parliament votes in favour of the proposed decisions

● the Council did not adopt the proposals (while some MS had already declared their acceptance)

● 21/07/2013: the Commission submitted the request for an Opinion to the Court pursuant to art. 218(11) TFEU

Relevant questions Nina Metljak

Preliminary question: “Does the exclusive competence of the Union encompass the acceptance of the accession of a non-Union country to the

Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

?”

Crucial questions that will go beyond the Opinion:1. Which is the scope and nature of an article 218 (11) TFEU request?

2. Does ERTA-case law continue in light of article 3(2) TFEU?

Arguments of the parties (admissibility)

Carlo Biz

10 MS and the Council: Request is inadmissible because conditions under 218 (11) TFEU are not fulfilled:1. It does not concern the conclusion of an agreement, but declarations of acceptance of accession (acts implementing the Convention - internal instrument intended to extend the territorial scope) and hence deals with the division of competence between EU and MS2. EU cannot accede to the Hague Convention (art. 38: it is States alone that may do so)3. No “envisaged” agreement with the Third States in question following the refusal of the Council4. The Commission should have brought infringement proceedings under art. 258 TFEU

EP and the Commission: Request for the opinion is admissible

Reasoning of the Court (admissibility) - II

Carlo Biz

● The classification of the declaration of acceptance of accession as a constituent part of an “agreement” (para. 37-42)

[Recalled law: art. 2(1)(a), Vienna Convention; art. 38, Hague Convention]

Two related instruments (accession + declaration of acceptance) expression to the → convergence of intent of the States → international agreement● The fact that the EU cannot accede to the 1980 Hague

Convention or deposit declarations of acceptance of accession to the Convention (para. 43-44)[Recalled case law: Opinion 1/03; Opinion 1/08; Opinion

2/91][Recalled law: Art. 196(2) Rules of Procedure]

Questions concerning the division of competence exercise of the competence through the →intermediary of the MS acting in the EU’s interest (p. 44)

Reasoning of the Court (admissibility) - I

Carlo Biz

● The classification of the declaration of acceptance of accession as a constituent part of an agreement “envisaged” at the time the request for an opinion is made (para. 45-51)[Recalled case law: Opinion 2/94; Opinion 3/94; Opinion 1/09]

Legitimate concern to know the extent of the respective powers of the EU and MS before a decision is taken (p. 46); Objective of the procedure is to forestall the legal complications caused by situations in which MS enter into international commitments without the requisite authorisation (p. 47); right accorded to the institutions and the MS to ask the Court for its Opinion can be exercised individually, without any coordinated action (p. 49).● Misuse of the Opinion procedure (para. 52-54)

[Recalled case law: Opinion 2/92]

Arguments of the parties (substance)

Nina Metljak

Parliament, Commission and the Italian governmentadoptions of declarations of acceptance of accession falls within exclusive external competence of the Union:● 1980 Hague Convention and Regulation No. 2201/2003

cover the same area;

● Article 11 of Regulation and other articles relating to return of the wrongfully removed children have the same scope as the Convention;

● Principle from Opinion 2/91 applies, an area already covered to a large extent by EU rules, external competence must be exclusive (par. 56-58).

Arguments of the parties (substance)

Nina Metljak

The Council and the majority of MS EU does not have external exclusive competence: ● Different objectives - objective of the declaration of acceptance of

accession - cooperation with the central authorities of third states, Regulation governs cooperation between central authorities of MS → the commitment not capable of undermining the uniform and consistent application of the Regulation;

● In the sphere of cooperation between central authorities of MS unilateral acceptance of a third state by a MS does not affect uniform and consistent application of EU law.

● exclusive external competence cannot arise merely because the area in which Convention applies in covered to a large extent by EU Law → criterion not included in Art. 3 (2) TFEU → only a partial overlap → existing overlaps are abstract, do not demonstrate that Convention has any effect on the Regulation.

● certain MS accept the accession of the acceding state while other do not is inherent in the nature of the Convention, not an obstacle to the proper application of the Regulation (par. 60-64).

Reasoning of the Court (substance)Nina Metljak

● Declaration of acceptance of accession is a constituent part of the international agreement and are ancillary to the 1980 Hague Convention;

● Existence of EU competence to conclude international agreements: → express or implicit; Convention falls within area of family law with cross-border implications → EU has internal competence under Art. 81 (3) TFEU → EU exercised that competence by adopting Regulation No. 2201/2003 - EU has external competence (par. 67-68);

● Nature of the competence: considered in light of Art. 3 (2) TFEU → third condition “...conclusion may affect common rules or alter their scope.”

● EU only has conferred powers, hence it is important to make a comprehensive and detailed analysis of relationship between envisaged international agreement and EU law in force (par. 69-74).

Reasoning of the Court (substance)Nina Metljak

Analysis:1980 Hague Convention: Two procedures → i.) Procedure for returning wrongfully removed children; ii.) Securing the exercise of rights of access.Regulation No. 2201/2003: complements and clarifies those rules of the Convention: ● Procedure for returning wrongfully removed children →

content of the Regulation is based on the rules of Hague Convention or establish the consequences which follow after application of those rules → those two categories of rules = unitary body of rules;

● Securing the exercise of rights of access → Regulation has similar basic rules (par. 75- 80)

The whole Convention must be regarded as covered by EU rules (par.83).

Reasoning of the Court (substance)Nina Metljak

Risk that common rules may be affected:● Overlap and close connection of provisions → Convention

may affect meaning, scope and effectiveness of rules in the Regulation;

● EU rules may be affected by international commitments even if there is no contradiction between them;

● Art. 60 of the Regulation: In case of overlapping, the Regulation will take precedence over the Convention→ despite that, when MS individually make separate declarations of acceptance, common rules are likely to be affected.

● Risk of undermining the uniform and consistent application of Regulation No. 2201/2003 (par. 84 - 90).

The exclusive competence of the EU encompasses the acceptance of the accession of a third State to the 1980 Hague Convention.

Importance of the OpinionNina Metljak & Carlo Biz

● The Court’s interpretation on the scope and meaning of the article 218 (11) TFEU request

● The confirmation of the ERTA-case-law post-Lisbon● Conference “EU private international law after Opinion

1/13” – Ferrara, 13 February 2015 (important repercussion on this field: withdrawal of reservations; denunciations of treaties)

● The relevance of judicial cooperation in civil matters - AFSJ

● Follow-up: resuming the discussion in the Council, Latvian Presidency Agenda, new accessions and new declarations of acceptance...

Own appraisalCarlo Biz & Nina Metljak

● AG Jääskinen View (first time a single AG heard during the procedure): a request just partly admissible? (points 26, 40, 44-45, 47-48) → a functional interpretation of the concept of “agreement envisaged”

● A broad interpretation of the meaning of “envisaged international agreement” by the Court of Justice - light test

● Sensitiveness of the topic (family matters) → distinguishing with Opinion 1/03 (civil and commercial matters)

● Different relationships of EU MS with the third countries which have joined the Convention system (intrusiveness of a joint simultaneous acceptance → different trust in the foreign competent central authorities → different relevance of the issue of child abduction according to the Third country)

Sitography

- www.europeanlawblog.eu (post of October 20, 2014 by Ankersmit L. “Requiring ‘unity first’ in relations with third states: the Court continues ERTA-doctrine in Opinion 1/13”)

- www.aldricus.com (post of October 15, 2014 by Franzina P. “The ECJ delivers a new opinion on the external competence of the European Union in the field of judicial cooperation in civil matters”)

- www.conflictoflaws.net (post of August 6, 2013 by Cuniberti G. “CJUE to issue a new Opinion on the external competence of the EU”)

- www.gdr-elsj.eu (post of December 7, 2014 by Mehdi R. & Nourissat C. “L’Avis 1/13 ou comment la Cour de justice confirme une conception traditionnellement extensive de sa compétence et privilégie l’efficacité des règlements de l’Union sur l’unité des conventions internationales”)

Thank you for the attention!Nina Metljak & Carlo Biz