Proposal for a COUNCIL DECISION on an authorisation addressed to France to negotiate a bilateral agreement with Algeria on matters related to judicial cooperation concerning family law matters
Date: 2023-02-08
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: Algeria, France, bilateral agreement, family law, judicial cooperation, negotiation of an agreement (EU)

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   EUROPEAN COMMISSION  Brussels, 8.2.2023  COM(2023) 64 final 2023/0027 (CNS)  Proposal for a COUNCIL DECISION on an authorisation addressed to France to negotiate a bilateral agreement with Algeria on matters related to judicial cooperation concerning family law matters  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The continuous development of the EU acquis on issues related to judicial cooperation in civil 
and commercial matters has consequences also on the international plan, with a large part of 
these  issues  now  falling  within  the  EU  exclusive  external  competence,  as  confirmed  by  the 
constant jurisprudence of the Court of Justice of the European Union. EU rules may indeed be 
affected  or  altered  by  international  commitments  where  such  commitments  are  concerned 
with  an  area  which  is  already  covered  by  a  large  extent  by  such  rules1.  In  this  context,  the 
negotiation of bilateral agreements of Member States with third countries has been limited to 
the  possibilities  offered  by  the  special  mechanism  provided  by  Regulation  (EC)  No 
662/2009,2  Council Regulation 664/20093 and Article 351 TFEU. 

 By means of a note verbale dated 26 July 2016, the Embassy of Algeria in France contacted 
the  latter  proposing  the  opening  of  negotiations  for  a  new  bilateral  agreement  concerning 
judicial  cooperation  in  civil  and  commercial  matters.  The  aim  was  to  modernize  and 
consolidate  in  one  instrument  the  three  already  existing  instruments  of  judicial  cooperation 
between France and Algeria concluded in 1962, 1964 and 1980.   

By  letter  dated  8  December  2016,  France  approached  the  Commission  asking  for  an 
authorisation  to  negotiate  and  conclude  a  bilateral  agreement  with  Algeria  in  civil  and 
commercial matters.  It  was added that the inclusion of family matters in the agreement was 
not  yet  decided.    A  draft  agreement  was  provided,  which  included  inter  alia  provisions  on 
service of documents, taking of evidence, recognition and enforcement of decisions, legal aid. 
It was acknowledged by France that at least some provisions of the draft agreement would fall 
within the EU exclusive external competence. 

France explained that the old instruments into force were not anymore capable to address in 
an  efficient  way  the  very  close  bilateral  cooperation  between  France  and  Algeria  and  there 
was  a  general  need  to  align  their  provisions  to  EU  standards  on  the  same  matters.  For 
instance, it was not possible to notify documents by registered mail or electronic means. In the 
context of the taking of evidence, the use of video-link was not permitted. 

However, while recognizing the exceptional economic, cultural, historical, social and political 
ties  between  France  and  Algeria,  the  Commission  remarked  that,  in  its  judicial  cooperation 
with third States, the EU broadly relies on the existing multilateral framework, such as the one 
created by the Hague Conference on Private International Law (HCCH).  This ensures that the 
same  legal  framework  applies  to  a  large  number  of  States  with  different  legal  backgrounds 
and  offers  considerable  benefits.  Therefore,  the  EU  promotes  the  accession  of  its  partner 

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For instance, Opinion 1/13 of the European Court of Justice, paragraph 73. 
Regulation  (EC)  No 662/2009  of  the  European  Parliament  and  of  the  Council  of  13 July  2009 
establishing a procedure for the negotiation and conclusion of agreements between Member States and 
third  countries  on  particular  matters  concerning  the  law  applicable  to  contractual  and  non-contractual 
obligations, OJ L 200, 31.7.2009, p. 25–30  
Council Regulation (EC) No 664/2009 of 7 July 2009 establishing a procedure for the negotiation and 
conclusion  of  agreements  between  Member  States  and  third  countries  concerning  jurisdiction, 
recognition  and  enforcement  of  judgments  and  decisions  in  matrimonial  matters,  matters  of  parental 
responsibility and matters relating to maintenance obligations, and the law applicable to matters relating 
to maintenance obligations, OJ L 200, 31.7.2009, p. 46–51 

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States  –  in  particular,  the  Mediterranean  countries  such  as  Algeria  -  to  the  relevant 
international  conventions  in  the  civil  justice  area,  many  of  which  were  drawn  up  by  the 
HCCH. 

The  Commission  concluded  that,  against  this  backdrop,  authorising  a  Member  State  to 
negotiate  and  conclude  bilateral  agreements  with  third  countries  in  the  area  of  civil  justice 
falling outside the scope of Regulation  (EC) No 662/2009 and Council Regulation (EC) No 
664/2009 would be not in line with the EU policy in this field. 

After a further exchange of letters, the issue was not anymore brought to the Commission’s 
attention,  until  November  2019.  The  outstanding  problem  was  discussed  in  depth  several 
times, both at political and technical level. During these meetings, it was clarified by France 
that the provisions of the draft agreement are deemed to be applied also in family law matters, 
notwithstanding the lack of an explicit reference to them in the text. A slightly amended draft 
agreement was sent to the Commission in July 2020. By note dated 9 April 2021 (received by 
the Commission on 9 July 2021), France further clarified the scope of the draft agreement and 
provided a new version where the provisions concerning the exercise of the legal profession 
were expunged from the text. 

France  explained  that  the  provisions  concerning  recognition  and  enforcement  of  decisions, 
service  of  documents  and  taking  of  evidence  are  to  be  applied  also  to  matters  concerning 
family  law,  in  particular  divorce,  separation  and  annulment  of  marriage,  parental 
responsibility,  child  abduction,  maintenance  obligations,  matrimonial  property  rights  and 
registered partnerships. Of particular importance for France was the recognition of divorce by 
mutual  consent.  France  assured  the  Commission  that  the  extensive  use  of  the  public  order 
exception by the French judiciary when dealing with Algerian decisions is a guarantee of the 
respect of human rights, gender equality and child protection. 

France also  communicated to  the Commission  the most recent data available  concerning its 
close relationship with Algeria. In 2021, there were 611. 084 major Algerian citizens living in 
France, making them the first foreign community. This number does not includes minors, bi-
nationals or people staying illegally in France. 31.980 French nationals are currently resident 
in Algeria, following the data included in the registers of French citizens living abroad. On the 
economic and commercial side, France is the second commercial partner of Algeria and the 
first investor outside the hydrocarbon sector. 

Taking  into  account  the  new  data  provided  by  France,  and  the  explanations  given  during 
several  technical  meetings,  which  took  place  in  the  period  2019-2021,  the  Commission 
decided to reassess the situation. 

It was evident that an accession of Algeria to the core Conventions developed by the Hague 
Conference on Private International Law would not happen in the foreseeable future. This was 
made  clear  by  Algeria  through  a  note  verbale  dated  14.2.2021  addressed  to  France    and 
transmitted by France to the Commission. 

Indeed,  notwithstanding the efforts of the Commission ( periodical JLS Sub-Committees with 
Algeria,  where  the  issue  of  Algeria  joining  the  Hague  Conventions  was  constantly  raised;  
participation  of  Algeria  to  all  editions  of  the  Euro-Med  Justice  Programme  financed  by  the 
Commission) and of the HCCH ( participation to  the “Malta Process” initiated by the HCCH,  
where the advantages of acceding to the multilateral framework where explained), Algeria has 

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always refused to engage constructively without elaborating on the reasons underpinning this 
choice. 

On the other hand, an EU-Algeria agreement related to judicial cooperation in civil matters is 
not planned by the Commission. EU policy on this matter is based on multilateralism, so that 
the accession of third States to the multilateral framework  developed by the HCCH would by 
itself create a common legal framework beetween the EU and its Member States on one side 
and Algeria on the other side. Bilateral agreements between the EU and a third country, even 
where  the  third  country  consistently  refuses  to  accede  to  HCCH  Conventions,  could  be 
contemplated only where a sufficiently strong Union  interest  can be identified based on the 
substantial relevance of judicial cooperation with this country across Member States and not 
only for an individual Member State. That is not the case here.  

Furthermore, as explained more in detail in the next chapter, neither the possibility offered by 
Article 351 TFEU nor an authorisation under Regulations 662 and 664/2009 were applicable 
in the present case. 

Therefore, the Commission concluded that an ad hoc authorization under Article 2 TFEU to 
France  could  be  considered.  France  may  be  authorised  to  negotiate  (and  at  a  later  stage 
conclude)  a  bilateral  agreement  with  Algeria  in  matters  falling  within  the  EU  exclusive 
external competence, having considered the  exceptional ties which link these two countries, 
provided    that  this  would  not  constitute  an  obstacle  to  the  development  and  the 
implementation of the Union's policies. 

It  is  understood  that  multilateralism  remains  a  cornerstone  of  the  EU  policy  towards  third 
countries  in  the  field  of  judicial  cooperation  in  civil  and  commercial  matters  and  that  this 
authorisation to negotiate, if granted by the Council, has to be considered exceptional and by 
no means considered as a precedent. The mere refusal of a third State to accede to the HCCH 
Conventions should not be regarded as a the only pre-requisite to grant an authorisation under 
Article 2 (1) TFEU, but  evidence of the exceptional situation of the relationship of a Member 
State with a given third country  should be duly demonstrated. 

• 

Consistency with existing policy provisions in the policy area 

The renegotiation of existing bilateral agreements in matters falling within the EU exclusive 
external  competence  is  allowed,  under  Article  351  TFEU,  to  the  acceding  States  to  the 
European  Union, in  order to  eliminate any incompatibilities between the  EU acquis  and the 
international agreements concluded by those Member States and third countries prior to their 
date  of  accession.  Several  Member  States  have  already  taken  advantage  of  this  Article  in 
order  to  update  legal  assistance  agreements  concerning  judicial  cooperation  in  civil  and 
commercial matters with third countries and the Commission has been kept informed of this 
process.    However,  the  wording  of  Article  351  TFEU  does  not  allow  the  Member  States 
founders of the European Economic Community  to update the agreements concluded after 1 
January 1958. The possibility to renegotiate bilateral agreements with third countries in order 
to align them with the acquis is therefore precluded to those Member States, including France, 
whose agreements to re-negotiate date from 1962, 1964 and 19804. 

This situation was somehow mitigated by the adoption of Regulation (EC) No 662/2009 and 
Council  Regulation  (EC)  No  664/2009,  which,  by  way  of  exception  and  under  strict 

4 
 https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62022CJ0435 

On the interpretation of Article 351 TFEU, see  Case C-435/22 PPU, paragraphs 115-126, 

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conditions, allow Member States to negotiate and conclude international agreements in certain 
matters  of  EU  exclusive  competence.  However,  the  scope  of  these  two  Regulations  is  very 
narrow  and  not  able  to  cover  the  several  matters  dealt  with  in  the  France-Algeria  draft 
agreement.  The  Regulations  are  indeed  of  exceptional  nature  and  should be  interpreted  in  a 
restrictive manner. 

Against this backdrop, Article 2 paragraph 1 TFEU reads: “When the Treaties confer on the 
Union exclusive competence in a specific area, only the Union may legislate and adopt legally 
binding acts, the Member States being able to do so themselves only if so empowered by the 
Union or for the implementation of Union acts”. 

As recalled above, this provision could be used to empower France to open negotiations with 
Algeria.  The  2019  Council  conclusions  on  the  future  of  the  judicial  cooperation  in  civil 
matters5  are open to  this possibility, recalling  “that a multilateral  approach is  an essential 
element  also  in  the  field  of  civil  justice(…)For  particular  cases  where  multilateral 
cooperation  is  not  an  option,  the  Council  invites  the  Commission  to  present  effective 
alternative to cater for citizens’ and companies needs”. 

As the future agreement will be inspired by the EU acquis and the HCCH Conventions, the 
related  negotiations  could  contribute  to  the  raise  awareness  with  Algeria  of  the  advantages 
that acceding to the multilateral framework could offer 

• 

Consistency with other Union policies 

Algeria  is  a  very  important  partner  for  Europe,  because  of  its  proximity  and  size,  its 
stabilising role in the region and on the African continent, and above all because of the close 
ties that have long united EU Member States to Algeria. 

The  European  Union  cooperates  with  Algeria  in  the  framework  of  the  European 
Neighbourhood Policy and its Southern dimension, the “Renewed partnership with Southern 
Neighbourhood  –  A  new  Agenda  for  the  Mediterranean”6.  Relations  between  the  EU  and 
Algeria  are  based  on  the  Association  Agreement,  which  entered  into  force  in 2005.  This 
constitutes  the  legal  framework  governing  relations  between  the  parties  in  economic, 
commercial,  political,  social,  and  cultural  matters.  It  has  enabled  a  rapprochement  between 
Algeria and the EU through close technical cooperation on the various axes of the agreement. 

Article  85  on  legal  and  judicial  cooperation  makes  reference,  in  relation  to  judicial  civil 
cooperation, to strengthening mutual assistance with regard to cooperation in the handling of 
disputes 
or 
cases  of  a  civil,  commercial  or  family  nature.  Such  cooperation  may  include,  where 
appropriate, the negotiation of agreements. 

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to 

Communication 

OJ C 419, 12.12.2019 
Joint 
Council, 
The  European  Economic  and  Social  Committee  and 
the  Regions:  
Renewed 
Neighbourhood 
Mediterranean, 
A 
https://www.eeas.europa.eu/sites/default/files/joint_communication_renewed_partnership_southern_nei
ghbourhood.pdf 

the  Committee  of 

Southern 
the 

Parliament, 

partnership 

European 

the 
for 

Agenda 

with 

new 

the 

the 

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The possibility for Member States to re-negotiate bilateral agreements with third countries is 
allowed in other fields of EU policies, both through a specific mechanism or an empowerment 
granted  under  Article  2  (1)  TFEU,  mostly  in  technical  matters  relating  to  transport.  For 
example, Regulation (EC) 847/20047, sets out guidelines for the adaptation by Member States 
of existing bilateral air service agreement and criteria for the negotiations and conclusion of 
future bilateral  agreements  between Member States  and third countries;  it also  established a 
specific procedure for the authorisation. 

The  empowerment  procedure  under  Article  2  (1)  TFEU  has  been  recently  used  in  transport 
matters,  for  instance  in  the  context  of  an  agreement  between  Italy  and  Switzerland8  and 
another between Germany and Switzerland9. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  basis  for  this  proposal  is  Articles  2(1)  TFEU  and  81(3)  TFEU,  as  the  present 
proposal is meant to address the provisions of the draft agreement France-Algeria which refer 
to  judicial  cooperation  in  matters  related  to  family  law,  with  the  exclusion  of  civil  and 
commercial matters, which are considered in a parallel initiative.  

• 

Subsidiarity (for non-exclusive competence)  

Not applicable as the proposal falls within the exclusive competence of the Union. 

• 

Proportionality 

The objective of the proposal is to authorise, pursuant to Article 2(1) TFEU, the negotiation of 
a  bilateral  agreement  between  France  and  Algeria  on  matters  pertaining  to  judicial 
cooperation in  family law matters, which fall within the EU exclusive external  competence. 
Consequently,  the  proposed  Council  Decision  does  not  go  beyond  what  is  necessary  to 
achieve this objective. 

As  explained  above,  the  only  option  in  line  with  the  available  legal  framework  and  the  EU 
policy  in  relation to judicial cooperation in civil matters, which is based on multilateralism 
and  does  not  foresee  the  negotiation  of  an  EU-Algeria  agreement    on  this  topic,  is  an 
authorisation to France to negotiate a bilateral agreement with Algeria. 

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of 

the 

and 

Council 

Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the 
negotiation and implementation of air service agreements between Member States and third countries, 
OJ  L  157,  30.4.2004,  p.  7–17;  Corrigendum  to  Regulation  (EC)  No  847/2004  of  the  European 
Parliament 
2004 
on  the  negotiation  and  implementation  of  air  service  agreements  between  Member  States  and  third 
countries (Official Journal of the European Union L 195 02/06/2004, p.3-6) 
Decision (EU) 2020/854 of the European Parliament and of the Council of 18 June 2020 empowering 
Italy to  negotiate and conclude an agreement  with  Switzerland authorising cabotage operations in the 
course of the provision of international road passenger transport services by coach and bus in the border 
regions between the two countries, OJ L 198, 22.6.2020, p. 47–48 
Decision (EU) 2020/853 of the European Parliament and of the Council of 18 June 2020 empowering 
Germany to amend its bilateral road transport agreement  with  Switzerland  with a view to authorising 
cabotage operations in the course of the provision of international road passenger transport services by 
coach and bus in the border regions between the two countries, OJ L 198, 22.6.2020, p. 44–46. 

April 

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• 

Choice of the instrument 

Empowerment  under  Article  2(1)  TFEU  should  be  granted  by  the  Union  legislator,  in 
accordance with  the legislative procedure referred to  in  Article 81 (3) TFEU. The proposed 
act, in its nature as individual empowerment, is to be adopted in response to a corresponding 
request made by France. It should therefore take the form of a decision, addressed to France. 
Consequently,  the  proposed  Decision  of  the  Council  represents  an  adequate  instrument  to 
empower France, in accordance with Article 2(1) TFEU, to act in this matter. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

This proposal is based on a request by France and concerns only this Member State. 

4. 

BUDGETARY IMPLICATIONS 

This proposal has no impact on the Union budget. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

It is foreseen to closely follow the development of negotiations between France and Algeria in 
order  for  the  final  agreement  to  have  a  minimum  impact  on  the  acquis.  To  this  end,  the 
Commission shall participate as an observer to the negotiations and shall be kept informed of 
the  progress  and  results  throughout  the  different  stages  of  negotiations.  France    and  the 
Commission  will  report  to  the  Working  Party  on  Civil  Law  Matters  as  appropriate.  Some 
directives of negotiation should be issued with the Council Decision. 

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2023/0027 (CNS) 

Proposal for a 

COUNCIL DECISION 

on an authorisation addressed to France to negotiate a bilateral agreement with Algeria 
on matters related to judicial cooperation concerning family law matters 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 81(3) thereof, 

Having regard to the proposal from the European Commission, 
Having regard to the opinion of the European Parliament10,  

Acting in accordance with a special legislative procedure,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

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By  letter  of  8  December  2016  France  requested  the  Commission  to  be  authorised  to 
negotiate a bilateral agreement with Algeria in matters related to judicial cooperation 
in civil and commercial matters. The aim was to modernize and consolidate the three 
existing bilateral agreements of 1962, 1964 and 1980 currently into force. 

France provided information showing that it has a specific interest in negotiating the 
draft  agreement  transmitted  to  the  Commission,  due  to  the  exceptional  economic, 
cultural, historical, social and political ties between France and Algeria. 

In particular, France provided data on the high number of Algerian citizens residing on 
its  territory  and  French  citizens  living  in  Algeria  and  on  the  specific  importance  of 
commercial exchanges between the two countries.    

Relations  between  the  EU  and  Algeria  are  based  on  the  Euro-Mediterranean 
Agreement  establishing  an  Association  between  the  European  Community  and  its 
Member States, of the one part, and the People's Democratic Republic of Algeria, of 
the other part11, which entered into force in 2005. This constitutes the legal framework 
governing relations between the parties in economic, commercial, political, social, and 
cultural matters. 

Article  85  of  the  Euro-Mediterranean  Agreement  stipulates  that  cooperation  in  the 
legal  and  judicial  fields  is  essential  and  a  necessary  adjunct  to  the  other  forms  of 
cooperation  between  the  EU  and  Algeria  and  that  such  cooperation  may  include, 
where appropriate, the negotiation of agreements in these fields. 

The EU relationship with  third countries in  matters related to  judicial cooperation in 
civil and commercial matters relies on the legal framework developed by The Hague 
Conference  on  Private  International  Law,  in  accordance  with  the  principle  of 

OJ C , , p. . 
Euro-Mediterranean Agreement establishing an Association between the European Community and its 
Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part, OJ 
L 265, 10.10.2005, p. 1–228 

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multilateralism.  However,  Algeria  is  not  a  Member  of  The  Hague  Conference  on 
Private International Law and has so far refused to accede to its core Conventions.  

(7) 

Notwithstanding this, the draft agreement appears to be largely inspired by the system 
established by the Hague Conventions and by the EU legislation adopted on the same 
matters.  

(8)  Most of the matters to be dealt with in the draft agreement between France and Algeria 
affect  the EU acquis,  in  particular  the EU legislation concerning family law matters. 
Consequently, the matters covered by such international commitments fall within the 
Union’s  exclusive  external  competence.  Member  States  may  negotiate,  or  enter  into, 
such  commitments  only  if  empowered  to  do  so  by  the  Union  in  accordance  with 
Article  2(1)  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU)  in 
conjunction with the substantive legal basis of Article 81(3) TFEU. 

(9) 

Due to the EU competence on most of the matters, France should regularly report  to 
the Commission on the conduct of negotiations. Both France and the Commission will 
keep the Working Party on Civil Law Matters informed on developments on a regular 
basis.   

(10)  There are no indications that the future agreement would necessarily negatively affect 
the acquis. It is appropriate, however, to provide for directives of negotiation ensuring 
to minimize the risk of such negative effects. 

HAS ADOPTED THIS DECISION:  

France  is  hereby  empowered  to  negotiate  an  agreement  with  Algeria  on  matters  related  to 
judicial  cooperation  in  civil  matters  related  to  family  law,  provided  that  the  following 
negotiating guidelines are followed: 

Article 1 

– 

– 

– 

– 

– 

– 

inform Algeria  that the European Commission shall take part in the negotiations as 
an  observer  and  will  be  informed  of  any  progress  and  results  achieved  during  the 
various stages of the negotiations; 

encourage Algeria to consider accession to the core Conventions  concerning family 
law  matters  developed  by  the  Hague  Conference  on  Private  International  Law  and 
start  a serious analysis of the reasons  which has  prevented Algeria to  do so for the 
time being; 

inform  Algeria  that,  after  the  conclusion  of  negotiations,  an  authorisation  from  the 
Council of the European Union is required before the Parties are allowed to conclude 
the agreement; 

inform  Algeria  that  the  authorisation  from  the  Council  of  the  European  Union  to 
conclude  the  agreement,  following  a  proposal  from  the  Commission,  may  provide 
that the agreement may have a limited validity in time ( for instance, five years) and 
may have to be reconsidered afterwards; 

insert  a  provision  to  the  effect  that  the  decisions  recognised  in  France  under  this 
agreement cannot subsequently circulate in other EU Member States;  

ensure that the provisions concerning the right to refuse the service of documents are 
aligned  with  the  provisions  of  Article  12(3)  of  the  Service  of  Documents  recast 
Regulation,    meaning  the  addressee  may  refuse  service  of  documents  either  at  the 
time of service or within two weeks of the time of service; 

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– 

inform Algeria that, depending on the development of negotiations, other negotiating 
directives may be needed in due course. 

Article 2  

The negotiations shall be conducted in consultation with the Commission, 

France  shall  regularly  report  to  the  Commission  on  the  steps  undertaken  pursuant  to  this 
Decision and consult it on a regular basis. 

Whenever so requested by the Commission, France shall report to it in writing on the conduct 
and the outcome of the negotiations. 

This  Decision  shall  enter  into  force  on  the  […]  day  following  that  of  its  publication  in  the 
Official Journal of the European Union.  

Article 3  

This Decision is addressed to the French Republic. 

Done at Brussels, 

Article 4 

For the Council 
The President 

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