(1)

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.

(1)

Title IV of Part Three 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.

(2)

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

(2)

Judicial cooperation in civil matters between Member States and third countries has traditionally been governed by agreements between Member States and third countries. Such agreements, of which there are a large number, often reflect special ties between a Member State and a particular third country and are intended to provide an adequate legal framework to meet the specific needs of the parties concerned.

(3)

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.

(3)

Article 307 of the EC Treaty requires the Member States to take all appropriate steps to eliminate any incompatibilities between the Community acquis and international agreements concluded by Member States with third countries. This may involve the need for the re-negotiation of such agreements.

(4)

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.

(4)

In order to provide an adequate legal framework to meet the specific needs of a given Member State in its relations with a third country, there may also be a manifest need for the conclusion of new agreements with third countries relating to areas of civil justice that come within the purview of Title IV of Part Three of the EC Treaty.

(5)

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 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.

(5)

The Court of Justice of the European Communities 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 competence to conclude an international agreement such as the Lugano Convention with third countries on matters affecting the rules in Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) (‘Brussels I’).

(6)

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 .

(6)

It is for the Community to conclude , pursuant to Article 300 of the EC Treaty, agreements between the Community and a third country on matters falling within the exclusive competence of the Community.

(7)

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.

(7)

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

(8)

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.

(9)

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.

(9)

With regard to agreements with third countries on particular matters of civil justice falling within the exclusive competence of the Community, a coherent and transparent procedure should be established to authorise a Member State to amend an existing agreement or to negotiate and conclude a new agreement , in particular where the Community itself has not indicated its intention to exercise its external competences to conclude an agreement by way of an already existing negotiating mandate or a proposed negotiating mandate . This procedure is without prejudice to the exclusive competence of the Community and the provisions of Articles 300 and 307 of the EC Treaty. It must be regarded as an exceptional measure and must be limited in scope and in time.

(9a)

This Regulation should not apply if the Community has already concluded an agreement with the third country or third countries concerned on the same subject matter. Two agreements should be considered to concern the same subject matter only if and to the extent that they regulate in substance the same specific legal matter. Provisions simply stating a general intention to cooperate on such issues should not be considered as concerning the same subject matter.

(9b)

Certain regional agreements referred to in existing Community legal acts should be covered by this Regulation.

(9c)

The Commission should define priorities with a view to developing the Community’s external relations in the area of judicial cooperation in civil and commercial matters, in accordance with guidelines that the Council may adopt in the future.

(10)

The present Regulation should be limited to agreements concerning sectoral matters related to the fields of jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations and to the applicable law in matters relating to maintenance obligations.

(11)

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.

(11)

In order to ensure that an agreement envisaged by a Member State does not render Community law ineffective and does not undermine the proper functioning of the system established by its rules, as well as to ensure that it does not undermine the Community's external relations policy as decided by the Community, the Member State concerned should be required to notify the Commission of its intentions with a view to obtaining an authorisation to open or continue formal negotiations on an agreement as well as to conclude an agreement. Such a notification should be made by letter or by electronic means. It should contain all relevant information and documentation enabling the Commission to assess the expected impact on Community law of the outcome of the negotiations.

(11a)

An assessment should be made of whether there is a Community interest in concluding a bilateral agreement between the Community and the third country concerned or, where appropriate, if there is a Community interest in replacing an existing bilateral agreement between a Member State and a third country by a Community agreement.

To that end, all Member States should be informed of any notification received by the Commission concerning an agreement proposed by a given Member State, in order to allow them to demonstrate their interest in joining the initiative of the notifying Member State. If, from this exchange of information, a Community interest were to emerge, the Commission should consider proposing a negotiating mandate with a view to the conclusion of an agreement between the Community and the third country concerned.

(11b)

If the Commission requests additional information from a Member State in connection with its assessment as to whether that Member State should be authorised to open negotiations with a third country or third countries, such a request should not affect the length of the period within which the Commission must give a reasoned decision on the application of that Member State to open such negotiations.

(11c)

When authorising the opening of formal negotiations, the Commission should, where appropriate, be able to propose negotiating guidelines or request the inclusion of particular clauses in the proposed agreement. The Commission should be kept fully informed throughout the different stages of the negotiations as far as matters falling within the scope of this Regulation are concerned and may be allowed to participate as an observer in relation to those matters.

(11d)

When notifying the Commission of their intention to enter into negotiations with a third country, Member States need to inform the Commission of elements which are of relevance for the assessment which it needs to make. An authorisation by the Commission and any possible negotiating guidelines or, as the case may be, a refusal by the Commission should concern only matters falling within the scope of this Regulation.

(11e)

The European Parliament, the Council and the Member States should be informed of any notification to the Commission concerning proposed or negotiated agreements and of any reasoned decision by the Commission under this Regulation. Such information should however fully comply with any applicable confidentiality requirements.

(11f)

The European Parliament, the Council and the Commission should ensure that any information identified as confidential is treated in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (2).

(11g)

In situations where the Commission, on the basis of its assessments, intends not to authorise the opening of formal negotiations or the conclusion of a negotiated agreement, the Commission should, before giving its reasoned decision, issue an opinion to the Member State concerned. In the case of the conclusion of a negotiated agreement, the opinion should be addressed to the European Parliament and to the Council.

(12)

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 is concluded.

(12)

In order to ensure that the negotiated 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 either its denunciation in part or in full in the event of a subsequent agreement between the Community or the Community and its Member States and the same third country on the same subject matter or for the direct replacement of the relevant provisions by the provisions of such a subsequent agreement.

(13)

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.

(13)

Provision should be made for transitional measures to cover situations where, at the time of the entry into force of this Regulation, a Member State is in the process of negotiating with a third country or has concluded the negotiations but not yet expressed its consent to be bound by the agreement.

(13a)

In order to ensure that sufficient experience has been gathered on the application of this Regulation, the Commission should submit its report no earlier than 8 years after its adoption. In its report, exercising its prerogatives, the Commission should confirm the temporary nature of this Regulation or examine whether this Regulation should be replaced by another covering the same subject matters or including also other matters falling within the exclusive competence of the Community and governed by other Community instruments.

(13b)

If the report to be submitted by the Commission confirms the temporary nature of this Regulation, a Member State should still, after the submission of the report, be able to notify the Commission of ongoing or already announced negotiations with a view to obtaining an authorisation to open formal negotiations.

(14)

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 Commission.

(15)

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.

(15)

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

(16)

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.

(16)

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 have given notice of their wish to take part in the adoption and application of this Regulation .

(a)

a bilateral agreement between a Member State and a third country ;

(b)

the regional agreements referred to in Article 59(2)(a) of Regulation (EC) No 2201/2003, without prejudice to Articles 59(2)(c) and 59(3) of that Regulation, and in Article 69(3) of Regulation (EC) No 4/2009 .

(a)

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

(a)

the Member State concerned has provided information to the effect that it has a specific interest in concluding the agreement due to economic, geographic, cultural, historical , social or political ties between the Member State and the third country concerned ;

(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.

(b)

on the basis of the information transmitted by the Member State, the proposed agreement appears not to render Community law ineffective and appears not to undermine the proper functioning of the system established by its rules ; and

(ba)

the proposed agreement would not undermine the object and purpose of the Community's external relations policy as decided by the Community.

(a)

full or partial denunciation of the agreement in the event of a subsequent agreement between the Community or the Community and its Member States and the same third country or third countries on the same subject matter , or

(b)

direct replacement of the relevant provisions of the agreement by provisions of a subsequent agreement between the Community or the Community and its Member States and the third country or the third countries on the same subject matter.

(a)

meets the conditions referred to in Article 4(2)(b);

(b)

meets the condition referred to in Article 4(2)(ba), insofar as there are new and exceptional circumstances in relation to that condition; and

(c)

fulfils the requirement under Article 5(2).

(a)

confirm that it is appropriate for this Regulation to expire on the date determined in accordance with Article 10a(1), or

(b)

recommend that this Regulation be replaced as of that date by a new Regulation.