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 rules. 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, Council Regulation 664/2009 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 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 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.