The European Parliament on EU-Ukraine Relations under the Hague Judgments Convention
The European Parliament passed on 15 June 2023 a resolution expressing support for the accession of Ukraine to the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters.
As reported on this blog, the Council of the European Union had already decided on 24 April 2023 that the Union would establish treaty relations with Ukraine under the Convention following the accession of Ukraine.
According to Article 29 of the Convention, accession to the Convention by one State creates treaty relations between that State and the States that have already joined the Convention only if neither of them has notified the depositary that the accession should not have the effect of establishing treaty relations with the other. If a State intends to issue a declaration to that effect, it must do so within 12 months of the ratification or accession of the State concerned. Absent a declaration, the Convention comes into effect between the States in question on “the first day of the month following the expiration of the period during which notifications may be made”.
The Council of the Union assessed, in its decision of 24 April 2023, that there were no reasons to prevent the accession by Ukraine from creating treaty relations between the Union and Ukraine under the Convention, and accordingly decided that an Article 29 declaration should not be issued.
By its recent resolution, the European Parliament basically expressed the same view.
The resolution does not entail, in itself, any effect on the international plane. Rather, it addresses a concern that relates to the role that the Parliament is entitled to play in the process leading to decisions regarding the establishment of the Union’s treaty relations with third countries.
Pursuant to Article 218(6) TFEU, the conclusion of an international agreement by the European Union requires a Council decision. When it comes to agreements covering fields to which the ordinary legislative procedure applies, including judicial cooperation in civil matters, the Council may only act “after obtaining the consent of the European Parliament”. The decision of 12 July 2022 whereby the Council decided that the Union would accede to the Hague Judgments followed precisely that pattern.
Now, under the current practice of the institutions, no formal procedure in accordance with Article 218(6) TFEU is initiated for the conventions that contain a non-objection mechanism, such as the Judgments Conventions. With respect to these conventions, the Commission only informs the Council and Parliament of any third country’s request to accede to a the convention in question. This means that if the Council decides to take no action regarding the third State’s accession (thus paving the way to the establishment of treaty relations with the latter), the Parliament risks being prevented from expressing its views on the desirability of the establishment of such relations.
In its recent resolution, the Parliament, having recalled that “an international agreement cannot affect the allocation of powers fixed by the Treaties”, stated that “the fact that at international level a silence procedure has been adopted to facilitate accession by third states should be of no consequence for the EU’s internal decision-making process”.
It is thus for the purposes of the internal decision-making process of the EU that the Parliament made use, by this resolution, of its prerogative under Article 218(6) TFEU to make a stance on the establishment of treaty relations between the Union and Ukraine under the Hague Judgments.
That said, the resolution also provided the Parliament with an opportunity to issue a political statement concerning the Union’s relations with Ukraine, in general. In the operative part, the Parliament reiterated its “unwavering solidarity with the people and leadership of Ukraine and its support for the independence, sovereignty and territorial integrity of Ukraine, within its internationally recognised borders”.
Very helpful post; thanks for putting this into context for those of us less familiar with the institutional practices in this area.
You may note that Ukraine did not “access” to the Convention, but has ratified it (see Hague Conference website). The EU approval has the effect of establishing treaty relations with Ukraine but not to allow the “accession” of Ukraine to the Convention. This is a very special procedure under Article 29 that cannot be found in any other Hague Convention in respect of ratifications.
Many thanks for your comment. The procedure contemplated in Article 29 is indeed peculiar. The post attempts to provide some information in that respect. You are right in saying that Ukraine “ratified” the Convention. The Vienna Convention on the Law of Treaties does distinguish ratification from accession (Articles 14 and 15), and so does the Judgments Convention itself, in Article 24, paras 2 and 3: ratification is for States who have signed the convention concerned, whereas accession does not presuppose signature. Still, the term “accession” is found in the EP resolution that the post reports about, and is used in the post for this reason. It is inaccurate, I agree, but the language employed in the resolution does not seem to alter the substance of the matter, since – according to the Vienna Convention itself – the terms “ratification”, “acceptance”, “approval” and “accession” all refer, in general, to an “international act … whereby a State establishes on the international plane its consent to be bound by a treaty”. I guess the EP had this broad meaning in mind when it used the word accession, rather than ratification. All that said, it is probably worth adding that the practice of the Hague Conference as regards ratification and accession has slightly changed over time. Up until the 2000 Adults Convention, if I’m not mistaken, only States that were members of the Conference at the time of the adoption of the text considered were permitted to sign it (and then ratify it), while all other States were given an opportunity to accede. Starting with the Securities Convention, Hague texts have been opened to both signature and accession by any State. The new practice makes the distinction between ratification and accession less meaningful than it used to be.