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Thursday, August 6, 2015

Hague Evidence Convention and the EU: did member state loose competence?

The Hague Evidence convention was already concluded 45 years ago, but it has lost not much of its relevance. The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, as it is formally called handles preserving evidence for later civil litigation in cross border situations and thus forms, with 58 parties, an important convention in Private International Law.

The European Union has similar rules in place since the 1206/2001 Regulation on "cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters", which explicitly names the Hague convention and replaces it in situations between member states. One of the reasons for adopting it, was that not all EU member states were parties (still Belgium, Ireland and Austria are non-parties).

One of the peculiarities of the Evidence convention is, that it allows member states of the Hague Conference (in 1970) to sign and ratify the convention, and other states to accede. Contrary to most conventions (but as is the case often with Hague conventions), there is a difference in legal effect of accession and ratification. The convention applies always between all ratifying states, but only between acceding states after their accession has been explicitly accepted by a ratifying state (or an acceding state that acceded earlier). The Hague Conference maintenance a nice excel sheet following acceptance, from which can be seen, for example, that the recent accession of Armenia has only effect with respect to 11 states (including the EU countries Czech Republic, Bulgaria, Germany)

In the past, EU member states have accepted new acceding states at their own initiative and pace, but is this still allowed or should they ask permission from the EU and approve accession of other states "in the interest of the European Union"? This post investigates the present situation, and -to stay with our example- whether the acceptances by Czech Republic, Italy and Germany of Brazil's accession without the approval of the EU are lawful.

Internal competence means external competence
The first question to be asked, is whether the EU has competence with regards to the Hague Evidence Convention. The EU is not a party, and "only" 25 of its 28 member states are, and matters within the EU are now falling outside the scope of the Convention, as the Regulation has replaced them. Nevertheless, in the famous opinion regarding the Lugano convention (Case 1/03, ECLI:EU:C:2006:81), the European Court of Justice  confirmed that if the EU has regulated a matter internally (in this case through the Execution regulation 44/2001), that also gives it competence for externally (the Lugano convention mostly the same text, but between the EU and EFTA states). The mere similarity between the systems makes that the two may "effect eachother". In the case between the Evidence REgulation and Convention this similarity clearly exists.

"Accepting an accession" is a treaty action
What is the acceptation of an accession? According to CJEU in opinion 1/13, and based on teh Vienna Convention on the law of treaties, the acceptance of an accession constitutes a treaty-making action. Thus if the EU would be (exclusively) competent to conclude the treaty, it should be (exclusively) competent to accept an accession. That seems crystal clear.

Exclusive or Shared competence?
Is the competence exclusive or shared? That's for me an open question, but -given the similarities in the fields- I assume, we are talking exclusive competence of the EU here.

The conclusion from this exercise is that acceptance of accessions of the Hague Evidence Convention falls in the (probably exclusive) competence of the EU. That is already the case  for some years (since 2001 when the Evidence Regulation was concluded?), but this became only apparent when acceptance of Hague Child Abduction acceptances were discussed (2012), and only became very clear once CJEU opinion 1/13 was given by 14 October 2014.
So, to return to our Brazil example; were Bulgaria, Czech and Germany at fault? They accepted after 1/13 was given, and thus it seems they are to blame for accepting without being competent to.

Other Hague conventions involved?
With competence of the EU established in the Hague Adoption Convention (explicitly) and the Hague Evidence Convention (by me at least;-), the story might not be over. Opinion 1/13 should also be evaluated in light of the 1996 Hague "Protection of Children" convention (similar provisions in Brussels II: 2201/2003), the 1965 Hague Service Convention (similar to Service Regulations 1393/2007 and 1348/2000). Those conventions however do not  allow member states to accept an accession, but allow them to prevent entry into force by lodging an objection within 6 months. There are more Hague conventions with relevant provisions and where the EU has (at least some) competence (the 1980 Access to justice convention, the Access to Justice convention), but the relevance of those conventions in daily practice is much lower. Last but certainly not least, the Hague Apostille Convention, the most ratified Hague convention with over 100 parties, also has the possibility of objection to accessions, and may (and here I am guessing) also be partly under EU competence (many of the documents falling under that convention fall under an easier EU system)...

Busy period for EC?
The European Commission will have a busy time in proposing regulations (1 for each acceding member state) for acceptance of the two conventions, or it will face delay in implementation. That is not just a legislative matter, but also a practical one: what criteria are to be fulfilled for accepting (or in the case of some conventions: not objecting) acceding countries? Should a national authority be in place (required by most convnetions and necessary for its functioning)? Or should a state show it can comply with the obligations? Do diplomatic conflicts factor in? It would be wise to have a discussion on those matters and see if a regulation can be proposed that delegates the responsibility for accepting to an EU institution or a working group of member states if relevant criteria have been met. That seems the only way to do this transparently and fast.
In the case of the Hague Service Convention and the Child Protection Convention, time is even more of the essence, because entry into force of a regulation allowing member states to reject accession of an acceding state within 6 months of the accession seems much too fast for the EU legislative machine.

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