Proposal for a Regulation of the European Parliament and of the Council establishing a procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning sectoral matters and covering applicable law in contractual and non-contractual obligations
Date: 2008-12-23
Institutions: European Commission
Subjects: Community acquis, EU law, Treaty of Amsterdam, bilateral agreement, revision of an agreement

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.12.2008 
COM(2008) 893 final 

2008/0259 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

establishing a procedure for the negotiation and conclusion of bilateral agreements 
between Member States and third countries concerning sectoral matters and covering 
applicable law in contractual and non-contractual obligations  

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

Pursuant to Article 65 of Title IV of the EC Treaty, introduced by the Treaty of Amsterdam, 
several Community instruments in the field of civil justice have been adopted.1 

Apart from this Community law acquis, the field of civil justice is for many Member States 
also  characterised  by  a  number  of  bilateral  agreements  which  they  concluded  with  third 
countries prior to the entry into force of the relevant provisions of the Amsterdam Treaty or 
prior  to  their  accession  to  the  European  Community.  To  the  extent  that  such  pre-existing 
agreements  contain  provisions  that  are  not  compatible  with  the  EC  Treaty,  Member  States 
need  to  take  all  steps  to  eliminate  the  incompatibilities,  pursuant  to  Article  307  of  the  EC 
Treaty.  The  European  Court  of  Justice  has  confirmed  that  if  necessary,  Member  States  are 
required to denounce agreements that are incompatible with the acquis.  

Apart from pre-existing bilateral agreements, there may also be a need for the conclusion of 
new  agreements  with  third  countries  governing  areas  of  civil  justice  that  come  within  the 
purview of Title IV of the EC Treaty. In line with the development of the European judicial 
area  related  to  cooperation  in  civil  and  commercial  matters,  the  Community  has  acquired 
exclusive external competence to negotiate and conclude international agreements with third 
countries on a number of important subject matters referred to in Title IV of the EC Treaty. 
This  was  confirmed  by  the  ECJ  in  its  Opinion  1/03  of  7  February  2006  relating  to  the 
conclusion  of  the  new  Lugano  Convention.2  The  Court  confirmed  that  the  Community  has 

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Council Regulation (EC) 1346/2000 on insolvency proceedings, OJ L 160, 30.6.2000, p. 1. 
Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments 
in civil and commercial matters, OJ L 12, 16.1.2001, p. 1. 
Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the 
taking of evidence in civil or commercial matters, OJ L 174, 27.6.2001, p. 1. 
Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of 
judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 
1347/2000, OJ L 338, 23.12.2003, p. 1. 
Council  Directive  2003/8/EC  to  improve  access  to  justice  in  cross-border  disputes  by  establishing 
minimum common rules relating to legal aid for such disputes, OJ L 26, 31.1.2003, p.41. 
Council Directive 2004/80/EC relating to compensation to crime victims, OJ L 261, 6.8.2004, p. 65. 
European  Parliament  and  Council  Regulation  (EC)  No  805/2004    creating  a  European  Enforcement 
Order for uncontested claims, OJ L 143, 30.4.2004, p. 15. 
European  Parliament  and  Council  Regulation  (EC)  No  1896/2006    creating  a  European  order  for 
payment procedure, OJ L 399, 30.12.2006, p. 1. 
European  Parliament  and  Council  Regulation  (EC)  No  864/2007  on  the  law  applicable  to  non-
contractual obligations (Rome II), OJ L 199, 31.7.2007, p. 40. 
European Parliament and Council Regulation (EC) No 861/2007 establishing a European Small Claims 
Procedure, OJ L 199, 31.7.2007, p. 1. 
European Parliament and Council Regulation (EC) No 1393/2007 on the service in the Member States 
of  judicial  and  extrajudicial  documents  in  civil  or  commercial  matters  (service  of  documents),  and 
repealing Council Regulation (EC) No 1348/2000, OJ L 324, 10.12.2007, p. 79. 
European  Parliament  and  Council  Regulation  (EC)  No  593/2008  on  the  law  applicable  to  contractual 
obligations (Rome I), OJ L 177, 4.7.2008, p. 6. 
European  Parliament  and  Council  Directive  2008/52/EC  on  certain  aspects  of  mediation  in  civil  and 
commercial matters, OJ L 136, 21.5.2008, p.3. 
Opinion 1/03 of 07 February 2006, Rec. 2006, p.I-1145. 

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acquired exclusive competence to conclude international agreements with third countries, on 
matters affecting the rules set out inter alia in Regulation (EC) No 44/2001 ("Brussels I"), in 
particular  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and 
commercial matters. In its opinion the Court found that the analysis of the provisions of the 
new  Lugano  Convention  relating  to  the  rules  on  jurisdiction  demonstrated  that  those 
provisions  affect  the  uniform  and  consistent  application  of  the  Community  rules  on 
jurisdiction and the proper functioning of the system established by those rules.3 With regard 
to the proposed Convention's rules on recognition and enforcement of judgements the Court 
came  to  a  similar  conclusion.  It  found  that  the  Community  rules  on  the  recognition  and 
enforcement  of  judgments  are  indissociable  from  those  on  the  jurisdiction  of  courts,  with 
which they form a unified and coherent system, and that the new Lugano Convention would 
affect  the  uniform  and  consistent  application  of  the  Community  rules  as  regards  both  the 
jurisdiction  of  courts  and  the  recognition  and  enforcement  of  judgments  and  the  proper 
functioning of the unified system established by those rules.4 

Consequently, it must be assumed that the Community has acquired exclusive competence for 
the negotiation and conclusion of many of the bilateral agreements referred to above.  

Nevertheless, it has to be assessed if there currently exists a sufficient Community interest for 
the Community to replace all such existing or proposed agreements between Member States 
and third countries with Community agreements. For that reason it is necessary to establish a 
procedure with a twofold purpose. The first is to allow the Community to assess whether there 
is  such  a  sufficient  Community  interest  in  the  conclusion  of  a  particular  agreement.  The 
second is to authorise Member States to conclude the agreement at issue if there is no current 
Community interest in the conclusion of a Community agreement.5 

The foregoing is in line with the conclusions of the JHA Council of 19 April 2007.6  

The  Commission  has  accepted  that  a  procedure  should  be  devised  also  for  agreements 
affecting the Rome II7 and Rome I8 Regulations9.  

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Opinion 1/03 Lugano, para. 161. 
Opinion 1/03 Lugano, para.172. 
Similar solution was adopted earlier for the civil aviation sector: see Regulation (EC) No 847/2004 on 
the  negotiation  and  implementation  of  air  service  agreements  between  Member  States  and  third 
countries, OJ L 157, 30.4. 2004, p. 7.  
On  19  April  2007,  the  JHA  Council  suggested  that,  as  regards  future  bilateral  agreements  and  any 
amendments  of  existing  bilateral  agreements  with  particular  third  countries  relating  to  maintenance 
obligations, a "procedure for the negotiation and conclusion of such agreements, inspired by existing 
precedents  in  Community  law,  inter  alia,  the  procedure  for  air  service"  should  be  introduced.  "That 
procedure  should  establish  criteria  and  conditions  for  assessing  whether  the  conclusion  of  such  an 
agreement  is  in  the  Community’s  interest.  Where  that  is  not  the  case,  the  procedure  should  establish 
criteria  and  conditions  for  the  negotiation  and  conclusion  of  such  agreements  by  Member  States, 
particularly if the prospective agreement’s provisions differ from Community rules, so as to ensure that 
agreements do not compromise the system established". 
Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) sets out in 
Recital  37  that  "the  Commission  will  make  a  proposal  to  the  European  Parliament  and  the  Council 
concerning  the  procedures  and  conditions  according  to  which  Member  States  would  be  entitled  to 
negotiated  and  conclude  on  their  own  behalf  agreements  with  third  countries  in  individual  and 
exceptional  cases,  concerning  sectoral  matters,  containing  provisions  on  the  law  applicable  to  non-
contractual obligations". 
Regulation  (EC)  No  593/2008  on  the  law  applicable  to  contractual  obligations  (Rome  I)  contains  a 
similar recital (Recital 42). 

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Accordingly,  the  Commission  proposes  that  such  a  procedure  should  be  devised  for  certain 
bilateral  agreements  concerning  sectoral  matters.  The  proposed  procedure  therefore  covers 
two  different  categories  of  sectoral  subject  matters.  One  proposal  relates  to  sectoral  matters 
pertaining  to  jurisdiction,  recognition  and  enforcement  in  matrimonial  matters,  matters  of 
parental responsibility and maintenance obligations and applicable law in matters relating to 
maintenance  obligations.  The  other  proposal  concerns  sectoral  matters pertaining  to  the  law 
applicable to contractual and non-contractual obligations. 

The present proposal concerns a procedure for granting authorisation to Member States in the 
second  area  mentioned,  that  is  the  law  applicable  to  contractual  and  non  contractual 
obligations for sectoral matters. Simultaneously with this proposal, the Commission is putting 
forward  a  separate  proposal  for  a  similar  procedure  for  the  area  of  matrimonial  matters, 
parental  responsibility  and  maintenance  obligations. As  the latter  is  governed by unanimity, 
these proposals must be put forward in separate acts. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

The  Commission  evaluated  a  range  of  different  options  to  achieve  the  objective  described 
above,  although  without  carrying  out  a  formal  impact  assessment,  taking  into  account  the 
particular nature of the subject. Two meetings with experts from the Member States were held 
in Brussels, on 11 March and 26 May 2008, to exchange ideas and views. 

Generally,  as  regards  the  scope  of  the  proposal,  the  Member  States  would  have  preferred  a 
horizontal  instrument  which  would  take  into  account  both  the  sectoral  type  of  bilateral 
agreements  and  the  "Lugano  type"  agreements  concerning  jurisdiction,  recognition  and 
enforcement of decisions in civil and commercial matters, and even the "broad agreements" 
on legal cooperation which may cover criminal, civil, family or administrative matters. 

Nevertheless,  such  agreements  dealing  with  issues  such  as  jurisdiction,  recognition  and 
enforcement  in  the  civil  and  commercial  area  in  general  are  likely  to  undermine  the 
Community  legal  framework  established  in  the  area  of  judicial  cooperation  in  civil  and 
commercial matters, and therefore to excessively affect the existing acquis which is based on 
a concept of integration and of legal certainty for European citizens with a view to facilitating 
their access to justice. 

Consequently,  since  this  must  be  regarded  as  a  derogation  procedure  in  relation  to 
Community law, the system proposed by the Commission is limited to the essential minimum 
to achieve the objectives described above.  

Several options were examined by the Commission for setting up the procedure. 

The  "passive"  status  quo,  i.e.  opting  not  to  take  any  measures  to  solve  the  problem,  would 
make it impossible for the Member States to conclude agreements with third countries in the 
identified fields. 

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It may indeed be necessary to enact provisions concerning the applicable law in contractual and non-
contractual matters in these cases in order to regulate specific situations. These may relate, for example, 
to  issues  of  airport  or  road  management.  Examples  of  this  kind  of  sectoral  agreements  are  the 
Convention  of  4  July  1949  between  France  and  Switzerland  concerning  the  construction  and 
management of the Basel-Mulhouse Airport and the Agreement of 25 April 1977 between Germany and 
Switzerland concerning the road between Lörrach and Weil am Rhein on Swiss territory.  

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The "active" status quo would involve opting not to develop any legislative procedure for the 
re-delegation  of  Community  powers.  All  agreements  between  the  Member  States  and  third 
countries would have to be negotiated and concluded by the Community under the procedure 
in  Article  300  of  the  EC  Treaty,  even  if  only  one  Member  State  has  an  interest  in  such  an 
agreement. 

The  next  option  consists  in  the  issuing  of  an  authorisation  by  the  Community,  based  on 
general  criteria  laid  down  by  a  legislative  instrument  (for  example,  a  Regulation)  or  by  a 
Council decision (on the basis of the aforementioned legislative instrument). The advantage of 
this option is that there would be a simpler procedure establishing a common approach in all 
situations.  The  drawback  of  this  option  is  that  it  presupposes  that  conditions  allowing  the 
Member  State  to  negotiate  and  conclude  agreements  with  third  countries  should  be 
established  in  advance.  Since  the  area  of  judicial  cooperation  in  civil  matters  is  constantly 
making  progress  within  the  Community,  this  would  entail  the  need  to  establish  different 
criteria for each instrument of the acquis (Brussels II Regulation, Rome I Regulation, Rome II 
Regulation, draft Regulation on maintenance obligations, etc.).  

In contrast, the last option selected by the Commission envisages a specific authorisation to be 
granted on a case-by-case basis after having assessed the agreement notified by the Member 
State on the basis of objective criteria. The Commission issues negotiating guidelines to the 
Member State, if necessary, and conducts an evaluation of the outcome of negotiations before 
allowing the agreement to be finally concluded.  

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action  

The  objective  of  the  proposal  is  to  establish  a  procedure  for  the  Community  to  make  an 
assessment of whether there is a sufficient Community interest in the conclusion of proposed 
bilateral  agreements  with  third  countries,  and  in  the  absence  thereof  authorise  the  Member 
States to conclude these agreements with third countries in certain fields concerning judicial 
cooperation  in  civil  and  commercial  matters  falling  under  the  exclusive  competence  of  the 
Community. 

Because  the  authorisation  to  Member  States  derogates  from  the  rule  that  the  Community  is 
exclusively  competent  to  conclude  international  agreements  on  these  matters,  the  procedure 
must be regarded as an exceptional measure and must be limited in scope and in time.  

It is proposed to limit the procedure in question only to sectoral issues related to matrimonial 
matters,  parental  responsibility  and  maintenance  obligations  on  the  one  hand,  and,  on  the 
other hand, to the law applicable to contractual and non-contractual obligations. The enclosed 
proposal deals with the second subject matter. 

The  Commission  proposes  the  following  guarantees  in  order  to  preserve  the  acquis 
communautaire  including  the  integrity  of  the  Community  system  in  the  area  under 
consideration.  

The procedure is based on prior notification of the draft agreement by the Member State that 
wish  to  obtain  the  authorisation  to  re-negotiate  and  conclude  the  agreement  with  the  third 
country on the basis of specific conditions to be evaluated on a case-by-case basis. 

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If  the  Community  has  already  concluded  an  agreement  on  the  same  subject  matter  with  the 
third  country  concerned,  the  Member  State  is  not  allowed  to  negotiate  or  conclude  the 
agreement with the third country concerned and any application submitted will be rejected. If 
that is not the case, the Commission must determine whether such an agreement is expected in 
the near future. If no such agreement is expected in the near future the Commission may grant 
authorisation,  provided  that  the  following  two  conditions  are  met:  (a)  the  Member  State 
concerned has demonstrated that it has a specific interest in concluding an agreement with the 
third  country,  related  in  particular  to  the  existence  of  economic,  geographic,  cultural  or 
historical  ties  between  the  Member  State  and  that  third  country;  and  (b)  the  Commission 
determines  that  the  proposed  agreement  is  of  limited  impact  on  the  uniform  and  consistent 
application  of  the  Community  rules  in  place  and  on  the  proper  functioning  of  the  system 
established by those rules. 

The procedure also provides for the inclusion in the agreements of sunset clauses to limit the 
validity in time of the agreements concluded by the Member States until the point when the 
Community  concludes  an  agreement  on  the  same  subject  matters  with  the  third  country 
concerned.  

•  Legal basis  

The legal basis for the enclosed proposal on the agreements concerning sectoral matters and 
covering the law applicable to contractual and non-contractual obligations is Article 61(c) and 
Article 65 of the EC Treaty, which state that the measures in the field of judicial cooperation 
in  civil  matters  having  cross-border  implications  are  to  be  taken  in  accordance  with  Article 
67(5), second indent, i.e. on the basis of the co-decision procedure. 

•  Subsidiarity principle  

The  proposal  falls  under  the  exclusive  competence  of  the  Community.  The  subsidiarity 
principle therefore does not apply. 

•  Proportionality principle  

The proposal complies with the proportionality principle for the following reasons: 

The  proposed  procedure  constitutes  an  exception  to  the  exercise  of  exclusive  Community 
competence  in  the  matters  set  out above..  It  is  limited  to  what  is  strictly  necessary  to  allow 
Member  States  to  conclude  agreements  with  third  countries  in  the  fields  identified  and  sets 
out a number of criteria that need to be met. An authorisation for Member States will only be 
given if the proposed agreement can be considered as having only a negligible impact on the 
applicable Community system. 

The proposed procedure makes use of the comitology procedure, as a legislative procedure is 
not  considered  necessary  and  taking  into  account  the  fact  that  the  proposed  procedure 
concerns the implementing powers of the Commission.  

The proposed procedure thus reduces the administrative burden falling on the Community and 
on the national governments to the essential minimum.  

•  Choice of instruments 

Proposed instrument(s): Regulation. 

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Other means would not be adequate for the following reasons:  

As the proposed  procedure provides for a derogation  from  Community  law,  a  Regulation  is 
the instrument which is directly applicable and provides the fullest guarantees as regards legal 
certainty and equal treatment. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5. 

ADDITIONAL INFORMATION  

•  Review/revision/sunset clause  

The proposal includes a review clause and a sunset clause. 

•  Detailed explanation of the proposal  

Scope (Article1) 

Article 1 limits the scope of the present proposal to the fields covered by Regulation (EC) No 
593/2008 on the law applicable to contractual obligations and Regulation (EC) No 864/2007 
on the law applicable to non-contractual obligations, and only in sectoral matters.  

Definitions (Article 2) 

Article 2 states that only bilateral agreements between a Member State and a third State are 
covered  by  the  procedure  established  by  the  present  proposal.  Therefore,  multilateral 
agreements  (including  in  particular  regional  agreements)  are  not  covered  by  the  proposed 
procedure.  

The proposed procedure (Articles 3-8) 

The  proposed  procedure  is  intended  to  establish  a  functional  arrangement  with  reduced 
formalities. At the same time, it ensures that the acquis communautaire can be safeguarded.  

The procedure requires (Article 3) the Member State to notify the Commission in writing of 
its intention to undertake negotiations on a new  agreement or in order to amend an existing 
agreement. The notification must include a copy of the draft agreement if available and any 
other  relevant  documentation.  This  notification  is  to  be  made  not  later  than  three  months 
before the beginning of the negotiations with the third country concerned.  

Upon  receipt  of  the  notification,  the  Commission  will  need  to  assess  whether  the  Member 
State can proceed with the negotiations (Article 4). If the Community has already concluded 
an agreement on the same subject matter with the third country concerned, the application will 
be automatically rejected. The assessment comprises the following steps. If no agreement has 
been  yet  concluded  by  the  Community  with  the  third  country  concerned,  the  Commission 
must  determine  whether  such  an  agreement  is  expected  in  the  near  future.  If  no  such 
agreement  is  expected  in  the  near  future  the  Commission  may  grant  authorisation,  provided 
that the following two conditions are met: (a) the Member State concerned has demonstrated 

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that  it  has  a  specific  interest  in  concluding  an  agreement  with  the  third  country,  related  in 
particular to the existence of economical, geographical, cultural or historical ties between the 
Member  State  and  that  third  country;  and  (b)  the  Commission  determines  that  the  proposed 
agreement is of limited impact on the uniform and consistent application of the Community 
rules in place and on the proper functioning of the system established by those rules. 

If the Commission considers, in the light of the conditions referred to above, that there are no 
obstacles to the proposed agreement, it can permit the Member State to open the negotiations 
(Article  5).  Where  necessary,  the  Commission  can  propose  negotiating  guidelines  and  can 
request the inclusion of particular clauses. 

The  agreement  must  also  contain  a  sunset  clause  for  its  termination,  should  the  European 
Community conclude an agreement with the third country in question.  

The decision on whether or not to permit the negotiations is taken by the Commission with 
the  assistance  of  an  advisory  committee  under  Article  3  of  Council  Decision  1999/468/EC 
laying  down  the  procedures  for  the  exercise  of  implementing  powers  conferred  on  the 
Commission10.  As  it  is  aimed  at  limiting  formalities to  the  essential  minimum,  the  advisory 
procedure is justified. The Commission submits to the Committee a draft of the measures to 
be taken, on which the committee expresses an opinion. The Commission then decides, taking 
this opinion into account as far as possible, and informs the committee of the manner in which 
the opinion has been taken into account.  

If the outcome of the Commission's evaluation is negative, the Commission does not give its 
authorisation and submits this decision to the opinion of an advisory committee. 

The  Commission  can  decide  to  take  part  in the negotiations between the Member State and 
the  third  country  as  an  observer.  If  the  Commission  itself  does  not  participate,  it  has  to  be 
informed  of  the  results  during  the  various  stages  of  the  negotiation,  in  order  to  be  able  to 
deliver  to  the  Member  State  its  opinion  on  the  content  of  the  agreement  before  its  final 
conclusion in the interest of efficiency (Article 6).  

The final stage of the procedure concerns the conclusion of the agreement (Article 7). Before 
initialling  the  agreement,  the  Member  State  concerned  must  notify  the  Commission  of  the 
outcomes of the negotiations and provide it with the text of the agreement. The Commission 
will  assess  whether  the  agreement  is  in  conformity  with  the  negotiating  guidelines  and 
whether the conclusion of the agreement can be considered to have a negative impact on the 
operation  of  the  Community  system  in  place,  in  particular  whether  (in  which  extent)  it  is 
likely to affect the acquis communautaire in force. If the Commission's evaluation is positive, 
it will give its authorisation. If the assessment is negative, the Member State concerned is not 
authorised  to  proceed  with  the  agreement.  This  decision  is  taken  in  accordance  with  the 
management procedure under Article 4 of Council Decision 1999/468/EC.  

It is proposed that the Commission takes its decision in relation to each relevant stages of the 
assessment procedure within six months of the relevant notification by the Member State.  

Transitional and final provisions (Articles 9-11)  

10 

Council Decision laying down the procedures for the exercise of implementing powers conferred on the 
Commission (1999/468/EC), OJ L 184, 17.7.1999, p. 23. 

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Article 9 lays down transitional provisions which are to be applied in cases where, at the time 
of  the  entry  into  force  of  the  Regulation-,  the  Member  State  concerned  has  already  started 
negotiations with the  third country or has already concluded them,  but has not  yet given its 
consent to be bound by the agreement.11 

The  proposed  procedure  thus  also  applies  to  this  situation,  subject  to  the  necessary 
adjustments:  notification  of  the  (draft)  agreement  to  the  Commission;  assessment  by  the 
Commission on the basis of the conditions listed in Article 4 of the proposal; authorisation to 
continue  the  negotiations  and  establishment  of  negotiating  guidelines  if  the  stage  of 
negotiations so permits; and authorisation to conclude the agreement. 

Article 10 stipulates that the Commission will submit to the European Parliament, the Council 
and the Economic and Social Committee a report concerning the application of the Regulation 
at the latest by January 2014. The report is to be accompanied, by an appropriate legislative 
proposal, given that the application of the Regulation is limited until the 31st December 2014. 

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An  example  of  this  situation  could  be  the  draft  agreement  between  France,  Switzerland  and  the 
European Organisation for Nuclear Research (CERN) concerning the law applicable to the undertakings 
acting in the premises of CERN to supply cross-border services. This agreement gives an example of a 
sectoral agreement falling within the scope of Regulation (EC) No 593/2008 ("Rome I"), and therefore 
it is subject to the proposed procedure. 

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2008/0259 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

establishing a procedure for the negotiation and conclusion of bilateral agreements 
between Member States and third countries concerning sectoral matters and covering 
applicable law in contractual and non-contractual obligations  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Articles 
61(c), 65 and 67(5) thereof, 

Having regard to the proposal from the Commission12, 

Having regard to the opinion of the European Economic and Social Committee13, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty14, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

Title  IV  of  the  Treaty  establishing  the  European  Community  (hereinafter  "the  EC 
Treaty") provides the legal basis for the adoption of Community legislation in the field 
of judicial cooperation in civil matters. 

Judicial  cooperation  in  civil  matters  between  Member  States  and  third  countries  has 
traditionally  been  governed  by  agreements  between  Member  States  and  third 
countries. 

Article 307 of the EC Treaty requires the elimination of any incompatibilities between 
the Community acquis and international agreements concluded by Member States and 
third countries. This may involve the need for re-negotiation of these agreements. 

There may also be a need for the conclusion of new agreements with third countries 
governing  areas  of  civil  justice  that  come  within  the  purview  of  Title  IV  of  the  EC 
Treaty.  

The ECJ confirmed in its Opinion 1/03 of 7 February 2006 relating to the conclusion 
of  the  new  Lugano  Convention,  that  the  Community  has  acquired exclusive  external 
competence to negotiate and conclude international agreements with third countries on 
a  number  of  important  subject  matters  referred  to  in  Title  IV  of  the  EC  Treaty.  In 
particular,  the  Court  confirmed  that  the  Community  has  acquired  exclusive 

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14 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 

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10 

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(6) 

(7) 

(8) 

(9) 

competence  to  conclude  international  agreements  with  third  countries,  on  matters 
affecting the rules set out inter alia in Regulation (EC) No 44/2001 ("Brussels I"), in 
particular  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil 
and commercial matters. 

Thus, pursuant to Article 300 of the EC Treaty, it is for the Community to conclude 
such  agreements  between  the  Community  and  a  third  country,  as  far  as  Community 
competence is concerned. 

Article  10  of  the  EC  Treaty  requires  Member  States  to  facilitate  achievement  of  the 
Community's  tasks  and  to  abstain  from  any  measure  which  could  jeopardize  the 
attainment  of  the  objectives  of  the  Treaty.  This  duty  of  genuine  cooperation  is  of 
general  application  and  does  not  depend  on  whether  the  Community  competence  is 
exclusive or not. 

An  assessment  is  needed  of  whether  there  currently  exists  sufficient  Community 
interest  in  replacing  all  existing  or  proposed  bilateral  agreements  between  Member 
States and third countries with Community agreements. Consequently, it is necessary 
to establish a procedure with a twofold purpose. The first is to allow the Community to 
assess  whether  there  is  such  sufficient  Community  interest  in  the  conclusion  of  a 
particular bilateral agreement. The second is to authorise Member States to conclude 
the agreement at issue if there is no current Community interest in the conclusion of 
such an agreement. 

A  coherent  and  transparent  procedure  should  be  established  to  authorise  Member 
States to amend existing agreements with third countries or to negotiate and conclude 
new  agreements  in  exceptional  circumstances,  in  particular  where  the  Community 
itself  has  not  indicated  its  intention  to  exercise  its  external  competences  to  conclude 
the agreement. This procedure is without prejudice to the exclusive competence of the 
Community and the provisions of Articles 300 and 307 of the EC Treaty. Because it 
derogates  from  the  rule  that  the  Community  is  exclusively  competent  to  conclude 
international agreements on these matters, the proposed procedure must be regarded as 
an exceptional measure and must be limited in scope and in time.  

(10)  According  to  the  recitals  of  Regulations  of  the  European  Parliament  and  of  the 
Council  (EC)  No  864/2007  on  the  law  applicable  to  non-contractual  obligations 
(Rome II)15 and No 593/2008 on the law applicable to contractual obligations (Rome 
I)16,  the  Commission  should  make  a  proposal  to  the  European  Parliament  and  the 
Council concerning the procedures and conditions according to which Member States 
would be entitled to negotiate and conclude on their own behalf agreements with third 
countries containing provisions on the law applicable to non-contractual or contractual 
obligations. 

(11)  According  to  these  Regulations,  the  proposed  mechanism  should  apply  only  to 
agreements  in  individual  and  exceptional  cases,  concerning  sectoral  matters  and 
containing rules in the fields covered by these instruments.  

15 
16 

OJ L 199, 31.7.2007, p. 40. 
OJ L 177, 4.7.2008, p. 6. 

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11 

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(12) 

(13) 

(14) 

In  order  to  ensure  that  an  agreement  proposed  by  a  Member  State  does  not  render 
Community  law  ineffective  and  undermine  the  proper  functioning  of  the  system 
established  by  its  rules,  authorisation  should  be  required  both  in  order  to  start  or 
continue negotiations and to conclude an agreement. This will enable the Commission 
to assess the expected impact of the (possible) outcome of negotiations on Community 
law. In relevant cases, the Commission can propose negotiating guidelines or request 
the inclusion of particular clauses in the proposed agreements. 

In  order  to  ensure  that  the  agreement  does  not  constitute  an  obstacle  to  the 
implementation  of  the  Community's  external  policy  on  judicial  cooperation  in  civil 
and  commercial  matters,  the  agreement  should  provide  for  its  denunciation,  when  a 
Community  agreement  with  the  same  third  country  on  the  same  subject  matters  of 
applicable law is concluded.  

It  is  necessary  to  provide  for  transitional  measures  to  cover  situations  where,  at  the 
time  of  the  entry  into  force  of  this  Regulation,  Member  States  are  in  the  process  of 
negotiations with a third country or have concluded the negotiations but have not yet 
expressed their consent to be bound by the agreement. 

(15)  The measures necessary for the implementation of this Regulation should be adopted 
in accordance with Council Decision 1999/468/EC laying down the procedures for the 
exercise of implementing powers conferred on the Commission17. 

(16) 

In  accordance  with  the  principle  of  proportionality,  as  set  out  in  Article  5  of  the 
Treaty,  this  Regulation  does  not  go  beyond  what  is  necessary  in  order  to  achieve  its 
objective. 

(17)  The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on the 
Position of the United Kingdom and Ireland annexed to the Treaty on European Union 
and the Treaty establishing the European Community, are taking part in the adoption 
and  application  of  this  Regulation,  in  so  far  as  they  took  part  in  the  adoption  and 
application of the Regulations covered by this Regulation or have accepted the former 
Regulations after their adoption.  

(18) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark, 
annexed to the Treaty on European Union and to the Treaty establishing the European 
Community, Denmark is not taking part in the adoption of this Regulation and is not 
bound by it or subject to its application,  

HAVE ADOPTED THIS REGULATION: 

Article 1 

Subject matter and scope 

1. 

This  Regulation  establishes  a  procedure  to  authorise  a  Member  State  to  amend  an 
existing  bilateral  agreement  between  that  Member  State  and  a  third  country,  or  to 

17 

OJ L 184, 17.7.1999, p. 23. 

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12 

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2. 

1. 

2. 

1. 

2. 

negotiate and conclude a new bilateral agreement subject to the conditions laid down 
in the following provisions. 

This Regulation shall apply to bilateral agreements between Member States and third 
countries  concerning  sectoral  matters  and  covering  applicable  law  in  civil  and 
commercial  matters,  and  falling,  entirely  or  partly,  within  the  scope  of  Regulation 
(EC)  No  593/2008  on  the  law  applicable  to  contractual  obligations  and  Regulation 
(EC) No 864/2007 on the law applicable to non-contractual obligations. 

Article 2 

Definitions 

For  the  purposes  of  this  Regulation,  the  term  "agreement"  shall  be  understood  as 
meaning bilateral agreement between a Member State and a third country. 

For the purposes of this Regulation, "Member State" shall mean any Member State 
other than Denmark. 

Article 3 

Notification to the Commission 

Where a Member State intends to enter negotiations with a third country to amend an 
existing agreement, or to conclude a new agreement falling within the scope of this 
Regulation, it shall notify the Commission of its intention in writing.  

The notification shall include a copy of the existing agreement, the draft agreement 
or  the  draft  proposal  by  the  third  country  concerned,  if  available,  and  any  other 
relevant  documentation.  The  Member  State  shall  describe  the  objectives  of  the 
negotiations and shall specify the issues which are to be addressed, or the provisions 
of  the  existing  agreement,  which  are  to  be  amended,  and  shall  provide  any  other 
relevant information.  

3. 

The  notification  shall  be  made  at  least  three  months  before  formal  negotiations  are 
scheduled to commence with the third country concerned. 

Article 4 

Assessment by the Commission  

1. 

Upon  notification,  the  Commission  shall  make  an  assessment  as  to  whether  the 
Member  State  can  pursue  negotiations  with  the  third  country  concerned.  If  the 
Community has already concluded any agreement with the third country concerned 
on  the  same  subject  matters,  the  application  of  the  Member  State  will  be 
automatically rejected by the Commission. 

EN 

13 

   EN 

 
2. 

If  the  Community  has  not  yet  concluded  an  agreement  with  the  third  country 
concerned,  the  Commission  shall  in  making  its  assessment  first  check  whether  any 
relevant Community agreement with the third country concerned is expected in the 
near future. If this is not the case, the Commission may grant authorisation, provided 
that the following two conditions are met:  

(a) 

(b) 

the Member State concerned has demonstrated that there is a specific interest in 
concluding  the  bilateral  sectoral  agreement  with  the  third  country,  related  in 
particular  to  the  existence  of  economic,  geographic,  cultural  or  historical  ties 
between the Member State and that third country; and 

the  Commission  determines  that  the  proposed  agreement  is  of  limited  impact 
on the uniform and consistent application of the Community rules in place and 
on the proper functioning of the system established by those rules. 

Article 5 

Authorisation to open negotiations  

1. 

2. 

3. 

If the Commission concludes that there are no obstacles to the agreement in the light 
of  the  conditions  referred  to  in  Article  4,  it  may  authorise  a  Member  State  to  open 
negotiations  on  the  agreement  with  the  third  country  concerned.  If  necessary,  the 
Commission  may  propose  negotiating  guidelines  and  can  request  the  inclusion  of 
particular clauses in the proposed agreement.  

The agreement shall provide for the clause on its denunciation in the event that the 
Community concludes an agreement with the same third country on the same subject 
matter.  The  agreement  shall  include  the  following  clause:  "(the  name  of  Member 
State)  will  denounce  the  agreement  when  the  European  Community  concludes  an 
agreement with (the name of the third country) on the same subject matters of civil 
justice as governed by the present agreement". 

If the Commission concludes that there are obstacles to the agreement in the light of 
the  conditions  referred  to  in  Article  4,  the  Member  State  shall  not  be  authorised  to 
open negotiations with the third country. 

The Commission shall take a decision on the authorisation referred to in paragraphs 1 
and 2 in accordance with the procedure referred to in Article 8(2).  

The  Commission  shall  give  its  decision  on  the  application  of  the  Member  State 
within six months of receipt of the notification referred to in Article 3. 

EN 

14 

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Article 6 

Participation of the Commission in the negotiations  

The  Commission  may  participate  as  an  observer  in  the  negotiations  between  the  Member 
State and the third country. If the Commission does not participate as an observer, it shall be 
kept informed of the progress and results throughout the different stages of negotiations. 

1. 

2. 

3. 

4. 

5. 

1. 

Article 7 

Authorisation to conclude the agreement  

Before  initialling  the  agreement,  the  Member  State  concerned  shall  notify  the 
Commission  of  the  outcome  of  negotiations  and  shall  transmit  the  text  of  the 
agreement to the Commission.  

Upon  notification  the  Commission  shall  make  an  assessment  as  to  whether  the 
negotiated  agreement  complies  with  its  initial  assessment.  In  making  this  further 
assessment the Commission must examine whether the proposed agreement includes 
the requirements made by the Commission, in particular as regards the inclusion of 
clauses  referred  to  in  Article  5(1)  and  whether  the  conclusion  of  the  proposed 
agreement  would  render  the  Community  law  ineffective  and  would  undermine  the 
proper functioning of the system established by its rules. 

If the Commission takes the view that the negotiations have resulted in an agreement 
which does not fulfil the requirements referred to in paragraph 2, the Member State 
shall not be authorised to conclude the agreement.  

If the Commission takes the view that the negotiations have resulted in an agreement 
which fulfils the requirements referred to in paragraph 2, the Member State may be 
authorised to conclude the agreement.  

The Commission shall take a decision on the authorisation referred to in paragraphs 3 
and 4 in accordance with the procedure referred to in Article 8(3). 

The  Commission  shall  give  its  decision  on  the  application  of  the  Member  State 
within six months of receipt of the notification referred to in paragraph 1.  

Article 8 

Committee procedure 

The  Commission  shall  be  assisted  by  a  committee,  established  under  Council 
Regulation (EC) No [...] establishing a procedure for negotiation and conclusion of 
bilateral agreements between Member States and third countries concerning sectoral 
matters  and  covering  jurisdiction,  recognition  and  enforcement  of  judgments  and 
decisions 
responsibility  and  maintenance 
obligations, and applicable law in matters relating to maintenance obligations. 

in  matrimonial  matters,  parental 

EN 

15 

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2. 

3. 

4. 

1. 

2. 

Where  reference  is  made  to  this  paragraph,  the  advisory  procedure  laid  down  in 
Article  3  of  Decision  1999/468/EC  shall  apply,  in  compliance  with  Article  7  and 
Article 8 thereof.  

Where reference is made to this paragraph, the management procedure laid down in 
Article  4  of  Decision  1999/468/EC  shall  apply,  in  compliance  with  Article  7  and 
Article 8 thereof.  

The  period  provided  for  in  Article  4  (3)  of  Decision  1999/468/EC  shall  be  three 
months. 

Article 9 

Transitional provisions  

Where  a  Member  State  has  already  started  negotiating  an  agreement  with  a  third 
country at the time of entry into force of this Regulation, Article 3(1) and 3(2) and 
Articles 4 to 7 shall apply.  

Where  the  stage  of  the  negotiations  so  permits,  the  Commission  may  propose 
negotiating guidelines or the inclusion of particular clauses, as referred to in Article 
5(1). 

Where a Member State has already completed negotiations at the time of entry into 
force  of  this  Regulation,  without  having  concluded  the  agreement,  Article  3(1)  and 
3(2) and Article 7(2) to (5) shall apply. 

When  deciding  whether  or  not  to  authorise  conclusion  of  the  agreement,  the 
Commission shall also assess whether or not there are any obstacles to the agreement 
in the light of the conditions referred to in Article 4. 

Article 10 

Review 

No later than the 1st January 2014 the Commission shall present to the European Parliament, 
the Council and the European Economic and Social Committee a report on application of this 
Regulation, which may be accompanied by an appropriate legislative proposal.  

Article 11 

Entry into force 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union.  

It shall apply until 31 December 2014. 

EN 

16 

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This  Regulation  shall  be  binding  in  its  entirety  and  directly  applicable  in  Member  States  in 
accordance with the Treaty establishing the European Community. 

Done at Brussels,  

For the European Parliament 
The President 
[…] 

For the Council 
The President 
[…] 

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17 

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