On 8 February 2023, the European Commission presented two proposals, the purpose of which is to pave the way to the negotiation (and conclusion) of bilateral agreeements between France and Algeria in the field of private international law.
One proposal is for a decision of the Council of the Union and the European Parliament that would authorise France to negotiate a bilateral agreement on matters related to judicial cooperation in civil and commercial matters (COM/2023/65 final). The other is for a Council decision authorising France to negotiate a bilateral agreement with Algeria on matters related to judicial cooperation concerning family law matters (COM/2023/64 final).
The future agreements are meant to replace bilateral agreements concluded in 1962, 1964 and 1980, and to align cooperation with Algeria with EU standards in this area.
The subject matter of the new agreements falls, to a large extent, within the exclusive external competence of the Union. In these circumstances the negotiation of bilateral agreements of Member States with third countries is generally limited to the possibilities offered by the special mechanism provided by Regulation No 662/2009 (on particular matters concerning the law governing contractual and non-contractual obligations) and Regulation No 664/2009 (regarding jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, as well as regarding the law applicable to matters relating to maintenance obligations).
Also relevant, in principle, is Article 351 TFEU. This begins by establishing that the rights and obligations arising from agreements pre-dating the launch of the European integration process between one or more Member States on the one hand, and one or more third countries on the other, are not affected by EU law. However, the provision goes on to state that, to the extent that such agreements are not compatible with the Treaties (and EU legislation), “the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established”.
When the prospect of one or more bilateral agreements between the two States emerged, in 2016, the Commission, while recognizing the exceptional economic, cultural, historical, social and political ties between France and Algeria, remarked that, in its judicial cooperation with third States, the Union broadly relies on the existing multilateral framework, such as the one created by the Hague Conference on Private International Law, rather than bilateral agreements. The Commission observed that authorising a Member State to negotiate and conclude bilateral agreements with third countries in the area of civil justice falling outside the scope of Regulations No 662/2009 and No 664/2009 would not be in line with the EU policy in this field.
The position of the Commission was later reviewed in light of further developments and additional information, including the fact that an accession of Algeria to key Hague Conventions was (and still is) unlikely to happen in the foreseeable future (Algeria is not a member of the Hague Conference and has not acceded, so far, to any convention elaborated under the auspices of the Conference), and the fact that an EU-Algeria agreement related to judicial cooperation in civil matters is not planned by the Commission.
The Commission observed that the EU policy in the field of private international law is based on multilateralism, and that bilateral agreements between the EU and a third country, even where the third country consistently refuses to accede to Hague 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. In the opinion of the Commission, this is not the case of the relations with Algeria.
The Commission further contended that neither the possibility offered by Article 351 TFEU nor an authorisation under Regulations 662 and 664/2009 are applicable in the present case.
Article 351, the Commission explained, is of no avail because it applies, for a founding Member (like France), only to agreements concluded prior to 1958, whereas the existing bilateral agreements between France and Algeria date from 1962, 1964 and 1980 (the Commission does not seem to give weight to the fact that, back in 1958, the European integration process simply did not include judicial cooperation: the latter became a concern for the European Community, as it was then, only with the entry into force of the Amsterdam Treaty, in 1999).
The Regulations of 2009, for their part, are of limited help, according to the Commission, because their scope is very narrow and they do not cover the range of matters dealt with in the France-Algeria draft agreements. Besides, the Commission stressed, the two Regulations are of exceptional nature and should be interpreted in a restrictive manner.
Therefore, the Commission concluded that an ad hoc authorization under Article 2(1) TFEU to France could be considered (according to Article 2(1), where the Treaties confer on the Union “exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts”, but clarifies that the Member States are permitted to do so themselves, inter alia, “if so empowered by the Union”).
The decisions that the Commission has proposed to adopt would authorise France to negotiate (and at a later stage conclude) bilateral agreements 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.
In the memorandum that accompanies the two proposals, the Commission reiterated that “multilateralism remains a cornerstone of the EU policy towards third countries in the field of judicial cooperation in civil and commercial matters”, and clarified that the authorisation to negotiate, if granted, should be “considered exceptional” and by no means serve as a precedent. The mere refusal of a third State to accede to the relevant Hague Conventions, the Commission added, “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”.