David Stanton (Cork East, Fine Gael) | Oireachtas source

I thank the committee members for their willingness to deal with this matter today. The three-month period during which Ireland can make the necessary notifications of our intention to participate in the adoption and application of a proposed measure is linked with the timing of that proposed measure becoming available in all official EU languages. We became aware during the summer recess that all language versions of one of the proposals which is before the committee today were available with effect from 18 July, and that the effective date in respect of the other proposed measure was 25 July. As the proposals are being dealt with together in the interests of efficiency, it is the intention that the required notifications will be made by 18 October. Negotiations have already started so there is an additional degree of urgency attaching to this matter.

The proposals which are before the committee today are for a regulation amending Regulation (EC) No. 1393/2007 on the service in the member states of judicial and extrajudicial documents in civil or commercial matters, and for a regulation amending Council Regulation (EC) No. 1206/2001 on co-operation between the courts of the member states in the taking of evidence in civil or commercial matters. I appreciate that the issues before the committee do not, at first glance, seem to be as significant as those with which it normally deals. Nonetheless, the scrutiny of these proposals by this committee is important in its own right and is also a necessary step in facilitating the moving of the motions in both Houses of the Oireachtas, which will enable the opt-in to both measures to be exercised.

Committee members will be familiar with the legal basis of the proposals which are before us today. That legal basis is to be found in Title V of Part 3 of the Treaty on the Functioning of the European Union, otherwise known as the Lisbon treaty. The application of Title V to Ireland is subject to the provisions of Protocol 21, which provides that Ireland shall not take part in the adoption and application by the Council of proposed measures under Title V, unless it notifies its wish to do so in accordance with Article 3 of the protocol, within three months of the proposal being presented to the Council. Under the same protocol, Ireland may at any time after the adoption of a measure by the Council under Title V notify the Council and the Commission, in accordance with Article 4 of the protocol, that it wishes to accept that measure.

Article 4a of the same protocol provides that the opt-in provisions of the protocol also apply to any measure, proposed or adopted under Title V, which amends an Act into which Ireland has already opted. That provision of the protocol is of particular significance where the measures which are before the committee today are concerned.

In respect of the service of documents, there have been two previous proposals on this matter, in both of which Ireland has participated from the outset. The current proposal builds upon the previous proposals in an organic way, and non-participation at this time could be misunderstood both by the Commission and by our EU partners. The service of documents is a critical element in a range of EU instruments operating within the civil justice space, and the view may be taken that our participation in the amended service instrument is essential for the effective functioning of those instruments. In this regard it should be borne in mind that Article 4a of the protocol contemplates the possibility that, if non-participation by the UK or Ireland in an amended version of an existing measure makes the application of that measure inoperable for the member states or the Union, the existing measure shall no longer be binding upon or applicable to the UK or to Ireland, as appropriate.

Where the taking of evidence proposal is concerned, Ireland has participated in the 2001 regulation on the taking of evidence from the outset. The efficiency of judicial procedures in civil or commercial matters requires that the transmission and execution of requests for the performance of taking of evidence should be made directly and by the most rapid means possible between member states’ courts using modern digital technology. For similar reasons to the service of documents proposal, continued participation in the evidence regulation and its proposed amendment is considered to be highly desirable.

Turning to the proposals themselves, as I said already, they provide for amendments to existing regulations in the area of service of documents and the taking of evidence. In both cases the existing regulations apply to civil and commercial matters in cross-border cases. I propose to deal first with the proposal for a regulation amending Regulation (EC) No. 1393/2007 on the service in the member states of judicial and extrajudicial documents in civil or commercial matters. The existing service of documents regulation provides for fast-track channels and uniform procedures for transmitting documents from one member state to another, for the purposes of service in the latter. The regulation includes certain minimum standards on the protection of the rights of defence, including providing that papers to be served on a party must be written in, or accompanied by a translation into, either a language which the addressee understands, or the official language of the member state addressed. Uniform legal conditions are already in place for serving a document by post directly across borders.

The European Commission has conducted a review of the operation of the 2007 regulation and while it concluded in broad terms that its application and operation was satisfactory, it also took the view that the passage of time, developments in respect of other regulations and advances in information and communications technology gave rise to a need to propose amendments to it. The aim of the amending proposal is to streamline and modernise the arrangements for service of documents between member states, thus making them more effective and efficient. The proposal clarifies that the regulation applies in all situations where the addressee is resident in another member state, with the aim of ending the current questionable practice in some member states of serving documents in that same member state on parties in another member state by what are referred to as alternative or fictitious methods of service of documents.

As part of the modernisation process the amending proposal envisages utilising, where possible, modern information and communications technology rather than existing paper-based systems. It is proposed that communication and exchange of documents between sending and receiving authorities would be carried out electronically, through a decentralised IT system made up of national IT systems interconnected by a secure and reliable communications infrastructure.

Another element of the amending proposal is for member states to assist in locating a person on whom a document is to be served. The proposal offers three alternative options, from which each member state must provide at least one in its territory for persons asserting their rights from other member states. Those three options include provision of judicial assistance through authorities designated by the member states. Also included is the provision of access to public domicile registers through the e-justice portal, or provision of detailed information via the e-justice portal on available tools for locating persons in their territories.

Further new provisions are those which concern electronic service of documents, where it is proposed that such electronic service would be an additional alternative method of service under the regulation, and treated as the equivalent of service by post. In addition, the existing provision concerning the rights of the addressee to refuse service of a document in certain circumstances is strengthened and clarified in line with the case law of the European Court of Justice. Finally, the current provisions concerning the giving of a judgment in default of appearance are updated.

I will turn to the proposal for a regulation amending Council Regulation (EC) No. 1206/2001 on co-operation between the courts of the member states in the taking of evidence in civil or commercial matters. The existing 2001 taking of evidence regulation provides for the taking of evidence in a member state other than the one in which judicial proceedings are or can be brought. This is an important instrument for European judicial co-operation given that it is often crucial to present sufficient evidence to the court to prove a claim. The regulation establishes an EU-wide system for the direct and rapid transmission of requests for the taking of evidence between courts and lays down precise rules as to the form and content of such requests. The efficiency of judicial procedures in civil or commercial matters requires that the transmission and execution of requests for the performance of taking of evidence is made directly and by the most rapid means possible between the courts of the member states.

The regulation provides for two methods of taking of evidence; first, the taking of evidence by the requested court following a request transmitted directly from the requesting court to the requested court; and second, the direct taking of evidence by the requesting court.

The initiative to amend the 2001 taking of evidence regulation is closely linked to the initiative concerning the service of documents regulation which I have just outlined. In 2017, the European Commission conducted an evaluation to assess the operation of the existing regulation. It has been acknowledged that overall the regulation has made a contribution to achieving objectives and has improved the efficiency of legal proceedings. It increases mutual trust between courts and helps to reduce the burden for citizens and businesses engaged in cross-border proceedings. However, according to the evaluation report, contacts between the bodies designated by the regulation are still almost exclusively paper-based, with adverse impacts on cost and effectiveness. Also, video-conferencing is rarely used to hear persons in another member state.

The aim of the amending proposal is to improve the smooth functioning of the area of freedom, security and justice, and of the Internal Market, by increasing the efficiency and speed of the cross-border taking of evidence. It proposes to achieve this by adapting Regulation (EC) No. 1206/2001 to technical developments, exploiting the advantages of digitalisation and ensuring that more use is made of video-conferencing. It is hoped that the initiative will increase legal certainty and thereby help to avoid delays and undue costs for citizens, businesses and public administrations and address shortcomings in the protection of parties’ procedural rights.

I will now outline the principal amendments proposed to be made to the taking of evidence regulation No. 1206/2001. It is proposed to replace Article 6 of the regulation dealing with the transmission of requests and other communications. This amendment introduces the mandatory electronic transmission of requests and communications through a decentralised IT system composed of national IT systems interconnected by a communications infrastructure. It is proposed to amend Article 17 and to insert a new Article 17a in order to ensure more frequent and faster use of direct taking of evidence in accordance with Article 17 via video-conference where this available to the courts in question. It is proposed to insert a new Article 17b to facilitate the taking of evidence by diplomatic officers or consular agents. This relates to the taking of evidence, in another member state, by hearing nationals of the member state which they represent.

It is proposed to insert the new Article 18(a) to ensure that digital evidence taken in accordance with the law of the member state where it was taken is not rejected as evidence in another member state solely due to its digital nature.

Overall, the proposal to amend the regulations seeks to address the need for modernisation, in particular digitalisation and the use of modern technology, in the cross-border taking of evidence. These changes are expected to generate benefits for citizens and businesses involved in cross-border proceedings.

Negotiations on both proposals which we are examining today commenced on 4 October. Ireland has, in the past, taken a positive approach to participation in the various civil law instruments which have been presented and our approach on this occasion is in keeping with past practice. It is important that we honour the commitment given in the context of successive treaties that we will take part in relevant measures in the justice area to the maximum extent possible and early opt-in does not necessarily mean that all elements of the Commission's proposals are acceptable to us. It will, however, strengthen our hand in terms of any policy stance which we may take, whether alone or in consultation with other member states. That policy stance will be influenced by appropriate consultation with interested parties including relevant Government Departments and the Courts Service. It is important that Ireland is seen to be in a position to play a full part in these negotiations and a positive response to the motions which have been tabled will facilitate that objective.

I thank the committee for making the time available to deal with these matters today. I look forward to the comments of the committee members and am happy to address any questions they may have.