2February 2007

Rome III

Thank you for your letter of 5 January which was considered by Sub-Committee E (Law and Institutions) at its meeting on 31 January. We note that the letter does not constitute the Commission’s formal reply to our Report but it may nonetheless be useful to respond straightaway to the three points you have raised. But first it might be helpful if I dealt with your statement of regret that the Commission was not invited to give evidence.

As you know the Committee is always grateful for the Commission’s participation in its (normal) inquiries. Indeed Sub–Committee E has recently met with Michel Petite and Philip Lowe to discuss the proposed EU Competition Court. The Commission has also been invited to give evidence in Sub–Committee E’s next inquiry, on the European Supervision Order, and we look forward to meeting representatives from your Directorate General early next month. But as our Report makes clear the nature of the Committee’s examination of the proposed Rome III was unusual, in the sense that its purpose was limited and essentially twofold, first to consider whether the United Kingdom should elect to opt in to the negotiations and second, to provide a response to COSAC as part of its pilot exercise testing national parliaments’ ability to opine on issues of subsidiarity and proportionality. Accordingly the Committee proceeded, in the spirit of the pilot exercise, on the basis of the Commission’s case as set out in the documents.

Turning to your three substantive points, and following your order, we assume that your description of the Commission’s statistical process has been triggered by the description of the criticisms made by our witnesses (in particular legal practitioners) set out in paragraph 18 of our Report. You say that the Commission has every confidence in the statistical methodology used. It is clear that that confidence is not universally shared in this case.

Your second point touches onthe issues of viresand proportionality. You say that you do not agree that the lack of the exact number or percentage of cases where determination of the applicable law has been a problem should prevent the Commission taking action. But, as we indicate in paragraph 19 of our Report, the Commission’s statistics do not reveal the number or percentage, however exact, of cases where the question of applicable law has been a problem. We believe that it is only right that Committees such as our own should look at proposals critically and constructively to ensure that action at Union level is necessary in any given case and that what is being proposed is proportionate. It appears that those advising our Government were also concerned about the absence, from the Commission’s Impact Statement, of information identifying where the question of applicable law had been a problem (Q 3).

Finally, you refer to the revision of the jurisdiction rules in Brussels II. As you say, this was one of the possibilities discussed in the Commission’s Green Paper. You say that the results of that consultation exercise and the expert meetings etc. following revealed that Member States, including the United Kingdom, were firmly against any revision of these rules. However, we remain of the view that it is important for us to draw to Parliament’s attention, as we do in paragraph 31 of our Report, that both academics and legal practitioners in the UK take the view that this might be a more appropriate and proportionate way to deal with any problem and that practitioners had expressed concern that the Impact Assessment had not adequately addressed the issue.

We are aware of the importance which the Council of Ministers attaches to Rome III and, notwithstanding that the UK has chosen not to opt in at this stage, will continue to monitor developments during the negotiation of this proposal.

I am copying this letter to Michael Connarty MP, Chairman of the Commons European Scrutiny Committee; and to Alistair Doherty, Clerk to the Commons Committee; Michael Carpenter, Legal Adviser to the Commons Committee; Les Saunders (Cabinet Office);andDeirdre Boylan, Departmental Scrutiny Co-ordinator.

GRENFELL

Jonathan Faull

Director General

Directorate–General Justice, Freedom and Security

European Commission

B–1049 Bruxelles