Liberal Democrat Member of the European
Parliament for Yorkshire and the Humber
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Diana Wallis Liberal Democrat Member of the European Parliament for Yorkshire and the Humber |
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| Enforcement of civil and commercial judgments 20/09/2000 |
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Wallis (ELDR), rapporteur. – Mr President, I speak first on behalf of the committee and will speak later on behalf of my group. In finally presenting this report to plenary on behalf of the Legal Affairs Committee, there are many people I should and will thank, but there is one whose inspiration I would especially like to mention because I hope it will set the scene for our debate tonight.
As a young lawyer in London in the early 1980s, I was privileged to work with a then elderly German lady, who was one of those remarkable German-Jewish immigrés who came to London in the early war years and entered the English legal profession. This amazing lady not only qualified as an English solicitor, having previously qualified in Germany, but, as a true European of her own generation, she also obtained a doctorate from the Sorbonne the title of which was the mutual recognition and enforcement of judgments. She inspired me with an interest in this area of law and as she gradually retired and handed over her practice, I became more and more familiar with the workings of the Brussels Convention as it came into force in the UK. I hope she would approve of where we have got to today, and how the European Union is now able to allow lawyers to move and practise in other Member States by choice rather than force of circumstance and that by this regulation our committee will further assist a step forward in giving greater access to justice to our citizens across Europe. I want to use this occasion to say something about the importance of what we are doing here. The original EC Convention on Jurisdiction and Judgments of 1968 was an important landmark in this field of international private law, marking a departure from a previous patchwork of mainly bilateral treaties between various countries. For the first time, by way of an intergovernmental convention, the EC gave itself a special, unique and comprehensive regime of recognition and enforcement. We are now participating in the next important landmark in that process – seeing what was a convention become a Community act, a regulation, in one fell swoop bringing a previous area of private international law into Community law and more importantly into the internal market. How fitting that it should be our committee, with its new competence in this legislature bridging the themes of legal affairs in the internal market, that should have had to deal with this new Brussels regulation. The committee has been at pains throughout this process to point out and highlight the importance of the internal market dimension of this proposal which gives us a chance to ensure even more strongly than before that our businesses and citizens can have confidence that contracts and obligations they enter into across the Union will be upheld by a common framework of procedural law on jurisdiction and enforcement. We are making progress towards a system of civil law and justice that will give ease and certainty of access across Member State boundaries, at last beginning to make a reality of the area of freedom and justice proposed at Tampere. The issue that has, of course, taken most of the committee' s time and attention has been the fact that this proposal for a regulation has coincided with the growth of e-commerce which in itself offers enormous opportunities to business and consumers within the internal market. The committee has, as the Commission will be well aware, grappled long and hard with the issues raised in Articles 15 and 17 of the proposed regulation. That is to say where there is a dispute between a business and a consumer, whose court should the parties have recourse to. These two articles, in whatever combination, have to be read together. The Commission proposal in line with previous consumer protection legislation took the view in dealing with Article 15 that all such disputes should go to the consumer' s court whilst willing to defer to a general proposition that contracts concluded at a distance should fall under this category. The committee has been searching for a way of protecting Europe' s growing e-commerce sector and especially small businesses from exposure to 15 different and diverse legal jurisdictions. The committee has therefore opted by a small majority in favour of the option of Article 17a which modifies the general principle in Article 15. This modification allows parties in a B to C contract to contract in favour of the seller' s jurisdiction. This was felt to uphold the freedom of contract of the parties but addition there is another element to which I will now turn. I believe the committee' s most fundamental contribution to this debate will be the introduction of the reference of such B to C disputes to ADR or EDR. This has been generally agreed to be the best way to neutralise the difficult discussion about whose jurisdiction can apply. There can be no doubt that the Brussels Convention made enormous strides in simplifying the jurisdiction rules applicable to cross-border disputes but they are still a lawyer' s dream and a litigant' s nightmare. They have not created real ease of access to justice. The opening up of a simple effective system of cross-border disputes is the committee' s goal in introducing the concept of ADR and we welcome the way in which this has already been picked up and worked on by the Commission. There was also agreement in committee that in this evolving area we remain deeply concerned as to the impact of legislation on Europe' s e-business. Therefore, in line with the E-commerce Directive, we have asked for a two-year review. I have covered the main aspects. I wish to conclude with a note of thanks to my colleague on the committee, especially to our chairman who I know feels as passionately as I do about this area of law, whatever our differences, but my biggest set of thanks must go to the committee secretariat and to Mr Robert Bray for all his help and advice throughout this process. .... Wallis (ELDR), rapporteur. – The opinion on this report revolves around Articles 15 and 17. I now speak on behalf of my group, in respect of the amendments tabled by them and other political groups. The shared aim of all of us is to try to find a balanced way of protecting consumers and shielding SMEs from differing Member State jurisdictions. This problem has been exaggerated totally out of proportion. From the evidence available, such cross border B to C disputes are few and far between and the hope is that most of them will now be weeded out by ADR systems. But, where they go beyond that, it is the consumer who is most disadvantaged. The bigger businesses will be able to afford legal assistance. The astute and sensible SME can insure for a modest premium. That leaves the residue of unsuspecting businesses that may get involved in a transaction outside their Member State. In these circumstances it is not unreasonable to build on the previous content of Article 15, use the concept of ‘directed at’ , acknowledge that this is a concept also found in American jurisprudence and utilised by WIPO. It is not simple but it has been used and there is no simple solution here. This, in combination with a modification to Article 17, which allows freedom of contract to choose ADR but respects existing consumer rights in the form of the unfair contract terms directive, presents a much more workable, legally certain package that will promote confidence. It is a mark of the balance that we have achieved in these amendments that they have won the support of the CBI in my own country and more than partial support from consumer organisations. They certainly prefer this package to the committee one. What I did not refer to when I spoke previously was Parliament' s role in this legislative process. We are consultees. We know from what has been said on this subject by Commissioner Byrne that he will not accept the type of formulation proposed by the committee at Article 17a. I believe that Commissioner Vitorino shares his view. From the Council' s perspective, the UK Government expressed a similar view. It seems unlikely that a French Presidency, which is highlighting consumer affairs, will take a different view. We could say that, because we are only consultees, we can say what we like. We are merely signalling a political direction but it is important that we should signal a legally certain and workable solution, not one that will create as many problems as it seeks to solve. Parliament should behave responsibly as a grown-up legislator, not as a petulant child. We have the opportunity to build on the already substantial achievements in the committee' s final report. I hope that we will go further. |
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