Regulation (EC) No 662/2009 of the European Parliament and of the Council of 13 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the law applicable to contractual and non-contractual obligations

Article 1

Subject matter and scope

This procedure is without prejudice to the respective competencies of the Community and of the Member States.

Article 2

Definitions

For the purposes of this Regulation, the term ‘agreement’ shall mean:

(a) a bilateral agreement between a Member State and a third country;

(b) a regional agreement between a limited number of Member States and of third countries neighbouring Member States which is intended to address local situations and which is not open for accession to other States.

Article 3

Notification to the Commission

Article 4

Assessment by the Commission

In making that assessment, the Commission shall first check whether any relevant negotiating mandate with a view to concluding a Community agreement with the third country concerned is specifically envisaged within the next 24 months. If this is not the case, the Commission shall assess whether all of the following conditions are met:

(a) the Member State concerned has provided information showing that it has a specific interest in concluding the agreement due to economic, geographic, cultural, historical, social or political ties between the Member State and the third country concerned;

(b) on the basis of the information provided by the Member State, the envisaged agreement appears not to render Community law ineffective and not to undermine the proper functioning of the system established by that law; and

(c) the envisaged agreement would not undermine the object and purpose of the Community’s external relations policy as decided by the Community.

Article 5

Authorisation to open formal negotiations

If necessary, the Commission may propose negotiating guidelines and may request the inclusion of particular clauses in the envisaged agreement.

The envisaged agreement shall contain a clause providing for either:

(a) full or partial denunciation of the agreement in the event of the conclusion of a subsequent agreement between the Community or the Community and its Member States, on the one hand, and the same third country, on the other hand, on the same subject matter; or

(b) direct replacement of the relevant provisions of the agreement by the provisions of a subsequent agreement concluded between the Community or the Community and its Member States, on the one hand, and the same third country, on the other hand, on the same subject matter. The clause referred to in point (a) of the first subparagraph should be worded along the following lines: ‘(name(s) of the Member State(s)) shall denounce this Agreement, in part or in full, if and when the European Community or the European Community and its Member States conclude an Agreement with (name(s) of the third country(ies)) on the same matters of civil justice as those governed by this Agreement’. The clause referred to in point (b) of the first subparagraph should be worded along the following lines: ‘This Agreement or certain provisions of this Agreement shall cease to be applicable on the day when an Agreement between the European Community or the European Community and its Member States, on the one hand, and (name(s) of the third country(ies)), on the other hand, has entered into force, in respect of the matters governed by the latter Agreement’.

Article 6

Refusal to authorise the opening of formal negotiations

Article 7

Participation of the Commission in the negotiations

The Commission may participate as an observer in the negotiations between the Member State and the third country as far as matters falling within the scope of this Regulation are concerned. If the Commission does not participate as an observer, it shall be kept informed of the progress and results throughout the different stages of the negotiations.

Article 8

Authorisation to conclude the agreement

Upon receipt of that notification the Commission shall assess whether the negotiated agreement:

(a) meets the condition set out in Article 4(2)(b);

(b) meets the condition set out in Article 4(2)(c), in so far as there are new and exceptional circumstances in relation to that condition; and

(c) fulfils the requirement under Article 5(2).

Article 9

Refusal to authorise the conclusion of the agreement

Article 10

Confidentiality

When providing information to the Commission under Articles 3, 4(3) and 8, the Member State may indicate whether any of the information is to be regarded as confidential and whether the information provided can be shared with other Member States.

Article 11

Provision of information to the Member States

The Commission shall send to the Member States the notifications received under Articles 3 and 8 and, if necessary, the accompanying documents, as well as all its reasoned decisions under Articles 5, 6, 8 and 9, subject to the confidentiality requirements.

Article 12

Transitional provisions

Where the stage of the negotiations so permits, the Commission may propose negotiating guidelines or request the inclusion of particular clauses, as referred to in the second subparagraph of Article 5(1) and Article 5(2) respectively.

Article 13

Review

That report shall either:

(a) confirm that it is appropriate for this Regulation to expire on the date determined in accordance with Article 14(1); or

(b) recommend that this Regulation be replaced as of that date by a new Regulation.

Article 14

Expiry

The period of three years referred to in the first subparagraph shall start to run on the first day of the month following the submission of the report to either the European Parliament or the Council, whichever is the later.

Article 15

Entry into force

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.