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Ladies and Gentlemen,
First of all, allow me to thank you kindly for your invitation. I am pleased to have the opportunity to discuss the Austrian Presidency's plans in the field of justice with you today. I regard contact with the EP as being of the utmost importance for fruitful interinstitutional cooperation, which is why I am keen to continue and extend it informally as well.
Permit me, after some remarks on our general objectives, to give you a survey of the dossiers we will be dealing with in the area of judicial cooperation in civil matters, but also in substantive civil law. At the same time, I will set out for your benefit my ideas regarding the projected schedule for work on the dossiers.
As you know, the Hague Programme, together with the European Commission's action plan which builds on it, lays down the policy guidelines for our action at European level. The approach adopted in the Programme of mutual recognition of judgments is an efficient means by which the rights of citizens can be protected and enforced across European borders. This principle is preferable to the harmonisation approach, because it takes into account the distinctive features of national legal systems while nevertheless leading, in its concrete forms, to the citizens of the Union experiencing Community law as a real help in their everyday life and thus developing a shared legal awareness. That is precisely what must form a central concern of our work at European level. Community legal acts are not an end in themselves, but must always be drawn up with an eye to their usefulness for our citizens. Only when we succeed in creating simpler, faster and lessexpensive procedures will citizens recognise the added value of our efforts in this area too, and be willing to give support to the European idea.
I would like now to give you some brief information on current dossiers:
First of all, because work on it is already well advanced, I will mention the Regulation creating a European order for payment procedure: the European order for payment procedure marks a further milestone in the "communitarisation" of civil procedural law.
At the Council in December 2005 the Member States reached agreement on the text thrashed out in the Council Working Party. Also in December 2005, the European Parliament too delivered a positive opinion in first reading, together with proposals for amendments. I certainly have every confidence that this project will be concluded under the Austrian Presidency. Essentially, all that remains is for the forms to be drawn up and finalised. If the outstanding discussions make swift progress, political agreement could already be reached at the Council in February, and the common position at the Council in April.
Let me move on to Rome II:
In this forum I do not need to make any general observations about the Regulation and its content: this Committee has already delivered a comprehensive and very detailed opinion on it. We have reached an advanced stage with the dossier.
I am convinced that the project is important and that it is useful for legal practice and thus for the citizen. The legal instruments adopted to date in the area of judicial cooperation in civil matters, for instance the European jurisdiction and enforcement Regulation, often provide for alternative jurisdictions in different States. But at present the competent courts in different Member States apply different substantive law to one and the same international situation. At present the plaintiff will choose the court which applies a more favourable substantive law from his viewpoint. The Rome II Regulation will combat this tendency and thus make a substantial contribution to putting a stop to forum shopping.
I very much hope that we will soon arrive at an agreement. Depending on progress made in the Committee on Civil Law Matters, I will be striving for political agreement at the Council in February or April.
With regard to the small claims procedure:
Like the order for payment procedure, the European small claims procedure too is designed to provide a simplified, time-saving and in particular less expensive court procedure for claims of up to EUR 2 000 as an alternative to the existing procedures in the Member States. Since the small claims procedure should in principle be carried out only in writing, the courts must pay particular attention to the fair trial principle enshrined in Article 6 of the ECHR. Hence it is essential that the respondent is always heard, whether in writing or at an oral hearing, which must always be possible even in the small claims procedure.
With this in mind, the Austrian Presidency will press on with discussions in the Council Working Party and attempt to provide a solution to the questions which still remain unresolved between the Member States. This involves, for instance, the question of who is responsible for the necessary translations of applications and documents, or who is to pay for the costs of proceedings or reimburse the respondent. I shall strive for a "common approach" at the Council in June and hope for a swift opinion from the European Parliament.
With regard to revision of the European Regulation on the service of documents:
The service of documents is an important building block in civil proceedings, the cost and often time-consuming nature of which is a constant cause of complaint – and not always without reason.
In its first report on the application of the Regulation on the service of documents, the Commission – in my view justifiably – pinpointed a need for improvement in this area. Its reflections have resulted in a concrete proposal for revising and further developing the Regulation. In agreement with the Parliament, the Austrian Presidency of the Council will endeavour to expedite the discussions at working party level begun under the United Kingdom Presidency and if possible bring the proposal to a successful conclusion at first reading or at least thoroughly prepare such an outcome.
Concerning the Regulation on the law applicable to contractual obligations (Rome I):
The aim of the Rome Convention of 1980 on the law applicable to contractual obligations was to standardise conflict-of-law rules and combine them in a legal act. However, many supplementary provisions in the field of contractual conflict-of-laws rules were subsequently adopted which ran counter to the original intention.
The transformation of the Convention into a Regulation now offers the opportunity to consolidate the legal position and adapt it to current requirements. The Commission's proposal, which aims at this objective, is a good basis for discussion.
I can assure you that we will approach this proposal with interest and commitment and hope to have a fruitful dialogue with you in this context as well.
Mediation:
Now I come to a proposal which is to create a fundamental legal framework for extrajudicial dispute resolution for the first time at EU level, namely the Directive on certain aspects of mediation in civil and commercial matters. Common minimum standards should thereby be established which on the one hand facilitate access to dispute resolution and on the other hand regulate the linkage with legal proceedings.
At the Council meeting in December 2005, the Ministers for Justice aimed at a comprehensive agreement on the text as elaborated so far, although a formulation of the scope has still to be found (key words "cross-border dimension"). In this connection, however, I have no wish to conceal the fact that, at the Council meeting in December 2005 various Member States reacted very critically to the proposal and called for an examination in the light of the subsidiarity principle. Austria will certainly take account of these reservations. However, we will first await the European Parliament's opinion.
The proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations is completely new.
Further developments in relation to the Regulation on jurisdiction and enforcement of judgments are on the one hand elimination of the grounds for refusal of enforcement for which provision had previously been made and renunciation of the Declaration of Enforceability (currently still required). On the other hand, efforts will be made to step up cooperation between authorities in cross-border enforcement of maintenance claims.
We will start work and press forward with this proposal.
Allow me to say a few more words on proceedings in the sphere of substantive civil law:
The proposal for a Directive amending the second company law Directive (77/91/EEC as regards the formation of public limited liability companies and the maintenance and alteration of their capital) is an important step towards more flexible formations and towards reducing the administrative costs of public limited liability companies. However, any relaxation of the provisions concerning publicity, justification and assessment of the board of directors tends to create an information deficit among shareholders and creditors. This natural conflict of interests – on the one hand the need for the board of directors to be able to act quickly and on the other shareholders' and creditors' need for information – makes agreement a difficult task. However, the Austrian Presidency is convinced that a balance can be struck which is useful for both sides and that the outstanding points can be settled in the coming weeks to the satisfaction of both the Council and the Parliament.
An important step towards modernising company law is the proposal for a Directive on the exercise of voting rights by shareholders of listed companies. The Austrian Presidency supports the Commission's aim to enable shareholders actually to make use of their legal possibilities of influencing the management of public limited liability companies, irrespective of their place of residence. Secure and cheaper alternative voting procedures can be introduced using new information technology. Both public consultations organised by the Commission on the topic
show broad consensus on the need for rules on this subject. We hope that the proceedings at the level of the Council working parties can be taken forward expeditiously.
Last week, I attended the meeting of the Committee on Civil Liberties, Justice and Home Affairs (LIBE), delivering a comprehensive report on criminal law matters. Criminal penalties to enforce Community law are now the focal point since the judgment of 13.9.2005 of the CJEC annulling the Framework Decision on the protection of the environment through criminal law. As you know, the consequences of this judgment formed one of the topics at the informal meeting of Ministers for Justice in Vienna on 13 January.
In the discussions, Commissioner FRATTINI intimated that, owing to critical remarks from members of your Committee, the Commission was no longer following the plan to turn a package of seven framework decisions adopted in the last few years into directives without changing the content. I am thankful for the EP's reserved attitude because I view developments in the area of substantive criminal law with growing concern. I would like agreement in principle to be reached within the European institutions on the following key points:
These principles must in particular be included in those legal acts which are currently under discussion, specifically in the Commission proposals concerning protection of intellectual property rights under criminal law (copyright law). The Commission has announced revised proposals in this connection and we will consult it on its intentions. In the opinion of the Member States, detailed provisions concerning the type and degree of the relevant penalties, jurisdiction and avoidance of parallel procedures will in any case not be set forth in a directive but in a framework decision.
A considerable measure of reserve is also called for regarding Commission plans to set aside framework decisions which were very painstakingly elaborated over the last few years and to replace them with directives. Aside from the fact that there is hardly any space in the very full working programme for such new negotiations, I consider that the judgment of the CJEC alone does not render them urgent. A clear need for substantive amendments should be put forward.
At this juncture I would like to emphasise explicitly that I do not shy away from the codecision procedure. On the contrary, Parliament's attitude is important to me and I think we should take more seriously the consultation procedure and the European Parliament's opinion expressed in it. Criminal law rules are, however, of a particular nature. They at once protect and limit the individual's freedom and, given the intensity of their intervention, are particularly worthy of understanding and acceptance. We do not preclude any necessary approximation in those areas that are necessary for maintaining fundamental rules of Community law or judicial cooperation. However, we want to avoid anything that leads to an estrangement between criminal law policy and citizens' attitudes and values. This is the only way we can preserve national legal traditions and ensure that the principle of subsidiarity is respected.
Ladies and gentlemen, my survey ends here. I can assure you that we want to encourage Member States to work wholeheartedly to achieve maximum progress on the dossiers pending, especially on those which I mentioned. I look forward to good and successful cooperation with you in the coming months, and hope to see many of you in two weeks' time at the JURI Committee's visit to Vienna. Thank you very much for your attention.
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