Proposal for a Council Decision amending Decision 2006/325/EC to provide for a procedure for the implementation of Article 5(2) of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
Date: 2009-03-04
Institutions: European Commission
Subjects: Denmark, agreement (EU), civil law, commercial law, judicial cooperation in civil matters in the EU, jurisdiction

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 4.3.2009 
COM(2009) 101 final 

2009/0034 (CNS) 

Proposal for a 

COUNCIL DECISION 

amending Decision 2006/325/EC to provide for a procedure for the implementation of 
Article 5(2) of the Agreement between the European Community and the Kingdom of 
Denmark on jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters  

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EXPLANATORY MEMORANDUM 

1. CONTEXT OF THE PROPOSAL(S) 

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1. 1. Grounds for and objectives of the proposal(s) 

Pursuant  to  the  Protocol  on  the  position  of  Denmark  annexed  to  the  Treaty  on 
European  Union  and  to  the  Treaty  establishing  the  European  Community,  Denmark 
does  not  take  part  in  Title  IV  of  the  EC  Treaty,  and  as  a  consequence  Community 
instruments adopted in the field of judicial cooperation in civil matters are not binding 
upon  or  applicable  in  Denmark.  However,  the  application  of  certain  Community 
instruments  has  been  extended  to  Denmark  by  way  of  the  international  agreements 
between the European Community and Denmark concluded on the basis of Article 300 
of  the  EC  Treaty.  The  relevant  international  agreements,  concluded  by  Council 
Decisions 2006/325/EC1 and 2006/326/EC2 respectively, are: 

(1) 

(2) 

the  Agreement  between  the  European  Community  and  the  Kingdom  of 
Denmark on jurisdiction and the recognition and enforcement of judgments in 
civil and commercial matters3 and  

the  Agreement  between  the  European  Community  and  the  Kingdom  of 
Denmark  on  the  service  of  judicial  and  extrajudicial  documents  in  civil  or 
commercial matters4.  

Those  parallel  agreements  provide  (in  Article  5(2))  for  the  European  Community's 
agreement  to  be  given  in  cases  where  Denmark  intends  to  enter  into  international 
agreements  which  may  affect  or  alter  the  scope  of  Council  Regulation  (EC)  No 
44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and 
commercial  matters  (hereinafter:  the  Brussels  I  Regulation)5  or  the  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 (hereinafter: the 
Regulation  on  the  service  of  documents)6.  Neither  the  Council  Decisions  on  the 
conclusion  of  those  parallel  agreements  nor  the  parallel  agreements  themselves 
stipulate how the Community should take a decision on such agreement. The objective 
of the proposal(s) is to lay down the procedure for the implementation of Article 5(2) 
of both parallel agreements, by amending the Council Decisions on their conclusion.  

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1.2. General context 

The parallel agreements provide (in Article 5(1)) that international agreements entered 
into by the Community based on the relevant Regulations (as annexed to the parallel 
agreements)  are  neither  binding  upon  nor  applicable  in  Denmark.  Denmark  has  to 

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OJ L 120, 5.5. 2006, p. 22. 
OJ L 120, 5.5.2006, p. 23. 
OJ L 299, 16.11.2005, p. 62. 
OJ L 300, 17.11.2005, p. 55. 
OJ L 12, 16.1.2001, p. 1. 
OJ L 324, 10.12.2007, p. 78. 

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refrain from entering into international agreements which may affect or alter the scope 
of  the  relevant  Regulations,  unless  it  is  done  in  agreement  with  the  Community  and 
satisfactory  arrangements  have  been  made  with  regard  to  the  relationship  between 
those parallel agreements and the international agreement in question. 

The  relations  between  Denmark  and  the  European  Community  as  regards  those 
parallel  agreements  are  regulated  by  international  law.  Article  300  of  the  EC  Treaty 
applies  and  the  Commission  consequently  cannot  enter  into  international  obligations 
on  behalf  of  the  European  Community  without  being  specifically  delegated  such  a 
right. The Council Decisions concerning conclusion of the parallel agreements and the 
agreements  themselves  do  not  delegate  to  the  Commission  the  power  to  give 
agreement  on  behalf  of  the  European  Community.  The  European  Community 
therefore  has  to  lay  down  the  specific  internal  procedure  to  be  followed  by  the 
European  Community  (excluding  Denmark)  for  taking  decisions  regarding  its 
agreement  to  the  conclusion  by  Denmark  of  international  agreements  affecting  the 
Regulations concerned as annexed to the parallel agreements. 

For practical reasons the Commission is presenting at the same time two proposals for 
implementing  both  parallel  agreements.  Although  it  is  less  likely  that  Denmark  will 
propose entering into international agreements containing provisions on the service of 
documents  abroad  that  might  affect  the  parallel  agreement  on  the  service  of 
documents,  it  is  necessary  to  lay  down  the  procedure  for  implementing  this  parallel 
agreement too.  

2. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

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A meeting between representatives of the Danish authorities and the Commission was 
held in 2008 in order to discuss the situation. No further consultations were held since 
the  question  of  the  internal  procedure  to  be  followed  by  the  European  Community 
concerns  only  the  European  Community,  with  the  exception  of  Denmark,  given  that 
Denmark does not take part in Title IV of the EC Treaty and in this context is to be 
regarded as a third country.  

The  Commission  evaluated  different  options  for  setting  up  the  implementation 
procedure, although without carrying out a formal impact assessment.  

One  of  the  options  would  have  consisted  of  amending  both  parallel  agreements  in 
order  to  provide  for  a  particular  implementation  procedure.  This  would  have  been  a 
much  heavier  procedure  (need  for  a  negotiating  mandate  for  the  Commission,  the 
negotiations  themselves  and  the  procedure  to  be  followed  for  the  conclusion  of  the 
agreements)  and,  since  the  issue  urgently  requires  a  solution,  this  option  was  not 
followed.  

The  option  chosen  by  the  Commission  envisages  a  simple  and  relatively  swift 
solution,  i.e.  amending  the  Council  Decisions  on  the  conclusion  of  the  parallel 
agreements so as to insert the particular provisions on the procedure to be followed by 
the  European  Community  for  taking  decisions  regarding  its  agreement  to  the 
conclusion by Denmark of international agreement concerned.  

3. LEGAL ELEMENTS OF THE PROPOSAL(S) 

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3.1. Summary of the proposed action 

The  Commission  proposes  amending  Council  Decision  2006/325/EC  and  Council  Decision 
2006/326/EC  in  order  to  insert  into  those  decisions  provisions  on  the  implementation  of 
Article  5(2)  of  the  parallel  agreements.  The  same  procedure  is  provided  for  the 
implementation of both parallel agreements.  

Two situations are  distinguished, and a different procedure  for the  European Community to 
give its agreement is laid down for each of those situations. The common denominator in both 
situations  is  that  the  Commission  is  empowered  by  the  Council  to  give  the  agreement  on 
behalf of the European Community. 

The  first  situation  includes  cases  where  the  Member  States  have  already  been  authorised  to 
conclude  the  international  agreement  concerned.  This  is  the  case,  for  example,  of  the 
International  Convention  on  Civil  Liability  for  Bunker  Oil  Pollution  Damage,  2001  (the 
Bunkers Convention), where the Community has already authorised its Member States, in the 
interest of the Community, to sign, ratify or accede to it (see Council Decision 2002/762/EC 
authorising the Member States, in the interest of the Community, to sign, ratify or accede to 
the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (the 
Bunkers Convention)7). Another example is the Protocol of 12 February 2004 amending the 
Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy (see 
Council Decision 2003/882/EC authorising the Member States which are Contracting Parties 
to  the  Paris  Convention  of  29  July  1960  on  Third  Party  Liability  in  the  Field  of  Nuclear 
Energy  to  sign,  in  the  interest  of  the  European  Community,  the  Protocol  amending  that 
Convention8  and  Council  Decision  2004/294/EC  authorising  the  Member  States  which  are 
Contracting  Parties  to  the  Paris  Convention  of  29  July  1960  on  Third  Party  Liability  in  the 
Field  of  Nuclear  Energy  to  ratify,  in  the  interest  of  the  European  Community,  the  Protocol 
amending that Convention, or to accede to it9). This first situation will also cover cases where 
the Community has itself become a party to international agreements affecting the Brussels I 
Regulation or the Regulation on the service of documents. In the cases described, given the 
fact that the Community has already reviewed the possibility of those Community instruments 
being affected by the international agreement concerned and has provided, where necessary, 
for safeguards to ensure that those Community instruments are applied in the relevant cases, a 
simple  procedure  is  established.  In  such  situations,  the  Commission  will  be  empowered  to 
give the agreement to Denmark on behalf of the European Community.  

The  second  situation  covers  all  cases  that  do  not  fall  into  the  first  category  above.  In  such 
cases  there  is  a  need  to  discuss  with  the  Member  States  the  possibility  of  the  Regulations 
concerned being affected by the international agreement which Denmark intends to conclude. 
The  Member  States  will  therefore  be  involved  in  the  decision-making  process  through  the 
comitology  procedure.  In  such  situations  the  Commission  will  be  empowered  to  give  the 
agreement  to  Denmark  on  behalf  of  the  European  Community  through  the  comitology 
procedure. 

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OJ L 256, 25.9.2002, p. 7. 
OJ L 338, 23.12.2003, p. 30. 
OJ L 97, 1.4.2004, p. 53. 

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3.2. Legal basis 

The legal basis for both proposals is Article 61(c) of the EC Treaty, in conjunction with the 
first subparagraph of Article 300(2) and the first subparagraph of Article 300(3) thereof.  

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2009/0034 (CNS) 

Proposal for a 

COUNCIL DECISION 

amending Decision 2006/325/EC to provide for a procedure for the implementation of 
Article 5(2) of the Agreement between the European Community and the Kingdom of 
Denmark on jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters  

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
61(c)  thereof,  in  conjunction  with  the  first  subparagraph  of  Article  300(2)  and  the  first 
subparagraph of Article 300(3) thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament10, 

Whereas: 

(1) 

(2) 

(3) 

The  application  of  the  provisions  of  Council  Regulation  (EC)  No  44/2001  of  22 
December 2000 on jurisdiction and the recognition and enforcement of judgments in 
civil and commercial matters11 was extended to Denmark by the Agreement between 
the  European  Community  and  the  Kingdom  of  Denmark  on  jurisdiction  and  the 
recognition and enforcement of judgments in civil and commercial matters, concluded 
by Council Decision 2006/325/EC12. 

Article 5(2) of the Agreement between the European Community and the Kingdom of 
Denmark  provides  that  Denmark  will  abstain  from  entering  into  international 
agreements which may affect or alter the scope of Regulation (EC) No 44/2001, unless 
it is done in agreement with the Community and satisfactory arrangements have been 
made  with  regard  to  the  relationship  between  that  Agreement  and  the  international 
agreement in question. 

Neither  the  Agreement  between  the  European  Community  and  the  Kingdom  of 
Denmark itself nor Decision 2006/325/EC stipulates how the European Community is 
to take a decision on its agreement to the conclusion by Denmark of the international 
agreement in question. 

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OJ C , , p. . 
OJ L 12, 16.1.2001, p. 1. 
OJ L 120, 5.5.2006, p. 22. 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

The procedure for implementing Article 5(2) of the Agreement between the European 
Community  and  the  Kingdom  of  Denmark  should  be  put  in  place.  Such  a  procedure 
should  ensure  that  decisions  on  the  European  Community's  agreement  can  be  taken 
swiftly. 

A distinction should be made between cases where the European Community has itsef 
already  become  a  party  to  the  international  agreement  or  has  authorised  its  Member 
States to do so in the interest of the European Community and all other cases. 

Decision 2006/325/EC should be amended accordingly in order to provide for such a 
procedure. 

The measures necessary for the implementation of this Decision should be adopted in 
accordance  with  Council  Decision  1999/468/EC  of  28  June  1999  laying  down  the 
procedures for the exercise of implementing powers conferred on the Commission13.  

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 to the Treaty establishing 
the  European  Community,  the  United  Kingdom  and  Ireland  are  taking  part  in  the 
adoption and application of this Decision. 

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 Decision, which is not 
therefore binding upon or applicable to Denmark, 

HAS DECIDED AS FOLLOWS:  

Sole Article 

Decision 2006/325/EC is amended as follows: 

The following Article 1a is inserted: 

"Article 1a 

For  the  purpose  of  applying  Article  5(2)  of  the  Agreement  the  decision  on  the 
European Community's agreement shall be adopted by the Commission if: 

(a) 

(b) 

The European Community has itself already become a party to the international 
agreement; or 

The  European  Community  has  authorised  its  Member  States  to  do  so  in  the 
interest of the European Community.  

In  all  other  cases  the  decision  on  the  European  Community's  agreement  shall  be 
adopted by the Commission in accordance with the advisory procedure referred to in 
Article 75(2) of Regulation (EC) No 44/2001." 

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OJ L 184, 17.7.1999, p. 23. 

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Done at Brussels,  

For the Council 
The President 

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