David Stanton (Cork East, Fine Gael)
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Apologies have been received from Deputy Pádraig Mac Lochlainn. The purpose of today's meeting is to consider two EU motions: COM (2013) 452, a proposal for a Regulation of the European Parliament and of the Council, adapting to Article 290 of the Treaty on the Functioning of the European Union a number of legal acts in the area of justice providing for the use of the regulatory procedure with scrutiny; and COM (2013) 554, a proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Department has indicated that the last date for Ireland to opt into the first three-month period is mid-December. A briefing document has been circulated to members. I welcome the Minister and his officials to this meeting. They are here to assist the committee in its consideration of these matters. I invite the Minister to brief us on the motions. This will be followed by a question and answer session. I invite the Minister to explain what this is all about.

Alan Shatter (Dublin South, Fine Gael)
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I could do that in a sentence, but I suppose I would get into trouble for doing so. I thank the committee for its willingness to deal with this matter today. It is important that Ireland is seen to be in a position to play a full part in the negotiations which have begun on both of these instruments. A positive response to the motions which have been tabled will facilitate that objective. Both proposals were presented by the Commission in July of this year. In effect, they amend proposals into which we have already opted. Their legal basis is to be found in Title V of Part Three of the Treaty on the Functioning of the European Union. In consequence, the protocol we share with the UK, whereby we have three months to exercise our option to take part in the adoption and application of relevant measures, applies. The exercise of that option is, of course, subject to the prior approval of both Houses of the Oireachtas.

We have been informed that the three-month period in respect of the proposal relating to Regulation 1215/2012, commonly referred to as the Brussels I Regulation, will expire on 18 December next. The expiry date for the other proposal has yet to be determined, but it is likely to be early in the new year. In case there is any confusion on this point, I should explain that the three-month period runs from the date on which the last official language version of a proposal was circulated to the Council. Therefore, it is not always the case that the period expires exactly three months after the date of the Commission proposal as first published. There are two motions before the committee for consideration. In the interests of efficiency, I would like to deal with both of them in this presentation. These proposals are the most recent in a long line of proposals to which the protocol applies and which have come before the Houses of the Oireachtas in recent years. Neither is especially controversial. I hope the committee will be willing to give them its support.

I will turn firstly to the proposal which has as its objective the amendment of the Brussels I Regulation. That instrument has been part of our legal order in one guise or another since the 1980s. It is widely regarded as a seminal instrument in the civil justice area. It provides a degree of certainty in relation to which court in which member state will take jurisdiction in an international case. It also provides a mechanism enabling judgments given in one member state to be recognised and enforced in each of the other member states. The most recent revision of the Brussels I Regulation took place in 2011. Those revisions are due to apply from January 2015. A key feature of the new instrument is that a declaration of enforceability will no longer be needed before a judgment coming from one member state is enforceable in another. This represents a simplification of the scheme which currently applies. The need for an amendment to Brussels I arises because certain adjustments are needed to accommodate an agreement which was reached in December 2012 on what is generally referred to as the "patents package".

In Ireland, responsibility for patents policy lies with the Department of Jobs, Enterprise and Innovation, while responsibility for the Brussels l regime lies with the Department of Justice and Equality. There are two key elements in the patents package, an EU regulation creating a unitary patent and an international agreement setting up a unified patent court, the UPC agreement. The latter was signed during the Irish Presidency in February of this year by 25 member states, including Ireland.

In order to understand the background to the new Brussels I proposal, it is necessary to say a little about recent developments at EU level in regard to patent matters. The coming into being of the unitary patent, which is a single patent valid throughout all the member states which have signed up to the relevant EU regulation, will be of immense significance for European inventors. In essence, it means that inventors will be able to file a single application with the European Patent Office, thereby securing uniform protection across participating member states without the need for further validation and subject only to a single renewal fee. This contrasts with the situation which pertains currently whereby patents granted by the European Patent Office, referred to as European patents, must also be validated by national patent offices and are subject to renewal fees which must be paid to each office where the European patent has been validated. The effect of the proposed changes is that inventors should find it easier and cheaper to protect their patents in more countries.

Another feature of the current patents regime is that litigation to protect a European patent must be taken separately in each national court where issues of infringement and validity arise. This results in a number of difficulties linked in with high legal costs, diverging decisions and overall lack of legal certainty. In order to address these difficulties, the UPC agreement will create a specialised patent court with exclusive jurisdiction for litigation relating both to unitary patents and to European patents, the latter after a transitional period of seven years. In essence, it will provide a one-stop-shop for patent litigation and its decisions will be binding on all participating member states. European Commission estimates suggest that the UPC could save businesses using the patent system in Europe sums of the order of €150 to €290 million annually.

The UPC will comprise a court of first instance, a court of appeal and a registry. The court of first instance will be composed of a central division and of several local and regional divisions in the member states which are contracting parties to the agreement. An examination is currently ongoing concerning the potential options for Ireland’s participation in the UPC. In any event, ratification of the UPC agreement by Ireland will necessitate the holding of a referendum, the timing of which will be predicated on work progressing at European level during 2014 to operationalise the UPC. I am sure the people will great with resounding applause the necessity for yet another referendum on an issue so easily understood as this with such widespread public appeal.

Turning to the proposal before the Committee, it should be noted that the UPC agreement explicitly provides that it cannot enter into force prior to amendments being made to the Brussels I regulation, which are intended to clarify the relationship between it and the latter. A key principle of the Brussels I regulation is that defendants have the right to be sued in the courts of the member state in which they are domiciled. There are some exceptions to this. For example, in tort cases, a defendant may also be sued in the courts for the place where the harmful event occurred or may occur. In the context of patent cases, this would cover infringement actions. However, with the creation of the UPC, it is envisaged that defendants could find themselves being sued in a member state other than that which would normally be designated by the current Brussels I regime. In order to address this difficulty, it is therefore being proposed that the UPC be considered as a court for the purposes of the regulation. In this way, it will be ensured that the international jurisdiction of the UPC will be set out clearly within the Brussels I regulation itself, thereby providing an essential element of legal certainty for future defendants.

It is also necessary to clarify that the UPC will have jurisdiction any time when a national court of one of the contracting member states would have jurisdiction based on the rules of the Brussels I regulation. In addition, the proposal seeks to extend the regulation’s jurisdiction to defendants domiciled in third states for matters which come within the competence of the UPC. It applies the lis pendensrule of the regulation to cases which are pending before the UPC on the one hand and the courts of non-contracting member states on the other. In essence, what those rules specify is that where proceedings involving the same cause of action and between the parties are brought in the courts of different member states, any court other than the court first seised shall stay the proceedings until such time as the jurisdiction of the court first seised is established. Finally, the proposal also specifies how the rules on recognition and enforcement of Brussels I should apply in relations between those member states which are contracting parties to the UPC agreement and those which are not.

There is a second aspect to the proposed regulation to which I will refer briefly. A key feature of the UPC is that it will be a court which is common to a number of member states. The Benelux Court of Justice is also such a court. It involves the member states of Belgium, Luxembourg and the Netherlands and was established under a treaty which dates 1965. At present, that court’s task consists mainly of giving preliminary rulings in certain cases involving rights relating to trademarks, models and designs. By virtue of a 2012 protocol, it is envisaged that the jurisdiction of the court will be expanded so that it will be competent to deal with appeal cases in the intellectual property area which were hitherto dealt with by the territorially competent national courts in the three countries in question. The provisions regulating the relationship between the UPC agreement and the Brussels I regulation are also relevant in the case of the Benelux court and they will be applied to that court by virtue of this proposal.

The technical negotiations on this proposal commenced in early September and the first reading has yet to conclude. By and large, it would be fair to say that member states do not have any problems of substance in regard to what the Commission is proposing and there is a general appreciation of the need to ensure that the proposal can be adopted within the timeframe necessary to ensure that the UPC can be up and running sometime during the course of 2015.

I will now turn to the other proposal, which is somewhat more obscure in terms of its overall objective. As it says in the title, it is a proposal which adapts to Article 290 of the Treaty on the Functioning of the European Union a number of legal acts in the area of justice providing for the use of the regulatory procedure with scrutiny. The instruments in question are five in number and concern the taking of evidence in civil and commercial matters, the creation of a European enforcement order for uncontested claims, the creation of a European order for payment procedure, the establishment of a European small claims procedure and the service of documents in civil or commercial matters. Ireland has opted into all of these instruments.

This particular proposal has been presented in parallel with another proposal which covers over 160 legislative acts. A separate proposal was required in the justice area because the legal basis of the proposals which it affects means that they do not bind all member states equally. In essence, this refers to the fact that the participation of Ireland, the United Kingdom and Denmark in these instruments, and in the proposal which is before the committee, is governed by the separate protocols which apply in this area.

In broad terms, this proposal is concerned with the mechanism for making minor modifications of a technical nature to certain annexes which are attached to each of the justice instruments referenced. Those annexes contain forms and certificates of various kinds which are important in terms of the practical functionality of the instruments. From time to time, it may be necessary to amend these forms to correct errors that may not have been noticed when they were adopted, to provide for the accession of new member states or to add or delete certain elements.

In order to bring about the necessary changes, which are directed solely towards amending non-essential elements of the basic instruments in question, a procedure known as the regulatory procedure with scrutiny currently applies. This involves the Commission coming forward with draft measures which are considered by a committee chaired by the Commission and consisting of representatives from all of the member states. The committee is empowered to deliver an opinion on the proposed measures to be taken and if that opinion is supportive of the measures, it is submitted for scrutiny by the European Parliament and by Council. Both of those bodies have the right to oppose the measures and if not opposed within a specific timescale, they are adopted by the Commission. If the opinion of the committee is not supportive of the proposed measures, a different procedure applies in regard to the engagement of Council and the European Parliament in the process.

The Treaty on the Functioning of the European Union has introduced a new system which modifies the framework for powers to be conferred on the Commission by the Council and by the European Parliament. This framework distinguishes between delegated Acts on the one hand and implementing Acts on the other. The former concerns powers delegated to the Commission to adopt non-legislative Acts of general application to supplement or amend certain non-essential elements of a legislative Act. The latter concerns powers conferred on the Commission to adopt uniform conditions for implementing legally binding Union Acts. Article 290 of the treaty relates to delegated Acts while Article 291 deals with implementing Acts. The idea behind this kind of delegation is the promotion of more efficient decision making, because it would clearly be inappropriate if each time a small change had to be made to an existing instrument, the full legislative process at EU level should apply. At the same time, it is also necessary to ensure that the prerogatives of Council and of the European Parliament are fully maintained with regard to that process.

In presenting this proposal, the Commission has taken the view that the delegated Acts approach is the one to follow for each of the instruments listed. The current proposal envisages that this power would be conferred on the Commission for an indeterminate period of time, but that it could be revoked at any time by the European Parliament or by the Council. Provision is made for delegated acts, when adopted by the Commission, to be notified simultaneously to both institutions. It is also provided that the adopted delegated Act will only enter into force if no objection has been raised by either of those institutions.

Negotiations have just begun on this proposal and it would be fair to say that member states are not completely enthused by it. Differing views have been expressed as to whether the delegated Acts approach is desirable in respect of all of the instruments and it has been suggested that the implementing Acts approach would be preferable as this involves some form of committee oversight by the member states. It has also been suggested that there is no need to modify the instruments at this time as most are due for review in the near future and a decision could then be taken on a case-by-case basis as to which model should best be followed. From this it can be seen that the debate is very open on this proposal and this underlines the importance of us opting in early to the discussion.

I have said in the past to this committee in respect of other proposals, and I will emphasise it again today, that opting into either of the proposals at this time does not mean that we necessarily agree with every aspect of them. The opt-in process merely ensures that we can be active participants in the negotiation process and this carries with it the undisputed right to make proposals to alter the texts should that seem desirable, and to participate in any votes that may arise.

Ireland has in the past taken a very positive approach to participation in the various civil law instruments which have been presented and our approach on this occasion is very much in keeping with past practice. It is important that we honour the commitment given in successive treaties that we will take part in relevant measures in the justice area to the maximum extent possible. Given that we have no fundamental difficulties with either of the proposals, we do not want to create a perception that such difficulties do in fact exist in so far as Ireland is concerned. From previous consideration of these issues, committee members will know that it is the case that, under the protocol, we may accept a proposal any time after it has been adopted. However, it has always been our considered view that in the absence of any significant policy issues, early opt-in to the discussions on particular proposals will maximise our ability to influence the shape of the final outcome.

Finally, I thank the committee for making the time available to deal with these matters today. I look forward to members' comments and I will be happy to address any questions which they may have. I hope, Chairman, that committee members will forgive me if I start croaking in a few minutes. I have had a bad throat for the last two days and I think my voice is about to give out. That may be a good thing.

David Stanton (Cork East, Fine Gael)
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We could not possibly comment. Thank you for that very interesting presentation. Do committee members have any questions or comments on either or both of the two proposals?

Ivana Bacik (Independent)
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I apologise for being late. I thank the Minister for his comprehensive briefing and for the briefing we received in advance about the two motions. I wanted to ask specifically about the idea of the court common to a number of member states that is envisaged in the UPC agreement. The Minister referred to the Benelux court of justice as such a court. Is there any other such court currently in existence, or will other courts be set up? It strikes me as obvious that there would be a court between the Benelux countries, but it is harder to envisage how Ireland might be affected.

Alan Shatter (Dublin South, Fine Gael)
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There is no such other court at the moment. The modalities of implementing this are part of the discussion that is taking place. That is one example of such a court.

Katherine Zappone (Independent)
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I thank the Minister for his comprehensive presentation. In his remarks, the Minister said that the proposed changes would make it easier and cheaper for inventors to protect their patents. He then goes on to state that there is a closer tie between the process and the framework to make it not only easier and cheaper, but more effective in protecting the patent. Can he say anything more, in accessible language, about how it is more effective in protecting the patent?

Alan Shatter (Dublin South, Fine Gael)
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At the moment, somebody may have to register a patent in each of the different EU member states. Under these proposals, there will be a unitary system and a person will effectively be able to register the patent in what will be the EU Patent Office. First, it will be done more quickly. Second, there is no duplication of paperwork. Third, it is much cheaper.

The patents package will have four major advantages. The first two are costs and administration. It creates a unitary patent with a unit form protection, so it will be across the 25 member states that are participating in it. The unitary patent will be available in the one-stop shop at an affordable cost, granted by the European Patent Office, with no further need for validation or translation. It will create a unified and specialised patent court for participating member states, which is the big issue around the holding of a referendum. This single jurisdiction for patent matters will enhance legal certainty. It obviates the possibility of different courts in different jurisdictions reaching different conclusions in this area. There will no longer be a need to take individual court proceedings across patent countries. If there is an allegation of a breach of a patent at the moment in more than one EU country, one could find oneself engaged in a multiplicity of litigation. The new system would bring that possibility to an end. It would also ensure that patent information is available in all the official languages of the European Union though computer translation. The information would be available online and be free of charge.

If we are talking about doing business in Europe and about the major multinational companies in this country engaged in research and development, then instead of having to register their patent in Ireland, in England, in France, in Italy and so on, they will register it with the European Patent Office and upon registration, that patent is effective in 25 different EU member states. There are huge savings to businesses, as I pointed out in my speech. The variation in estimates is enormous, but common sense indicates that there will be substantial savings. Due to its nature, it will be a lot speedier.

Katherine Zappone (Independent)
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I thank the Minister. That is very helpful. How long will it take to establish the framework?

Alan Shatter (Dublin South, Fine Gael)
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We are going to go through the usual process at EU level, which involves discussions, working groups and negotiations on the issue. Inevitably, it will come back to the Council of Ministers for agreement. The measure also has to be agreed at European Parliament level.

There is probably some time in it although I cannot predict with certainty what the timeframe will be. However, if we are looking at the need to hold a referendum on the issue, then, by some happy coincidence - it is actually a planning matter - 2015 is likely to be a good year to hold the referendum.

Katherine Zappone (Independent)
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That was in the back of the Minister's mind.

Alan Shatter (Dublin South, Fine Gael)
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It will be one of various referendums that, I anticipate, will be held on what we are going to call "constitutional day", although someone may have a more trendy term for it. Clearly there will be more than one referendum to be held in the context of all of this.

This will be an international agreement at European Union level between member states once it is agreed. We are heading in that direction and we will require a referendum. I hope we will be able to persuade people that this is a topic of sufficient interest to vote "Yes". It is good for business. There are no negatives in this from any from any perspective in the context of Ireland.

Katherine Zappone (Independent)
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On behalf of my colleagues I wish to state that the justice committee stands prepared to help educate the public in light of the Minister's comprehensive presentation.

David Stanton (Cork East, Fine Gael)
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Excellent, we shall remember that offer, thank you.

Ivana Bacik (Independent)
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I wish to turn to the second proposal the Minister has addressed. I echo Senator Zappone's words about our being ready to help. The second proposal, which I gather is the first one on our agenda, is the motion relating to COM (2013) 452, which has a rather obscure title. I am keen to explore the matter a little further. As the Minister has said, the Commission has proposed that the delegated acts approach is preferable for each of the instruments listed. As I understand it, this is a compendium proposal that covers a range of more than 160 legislative acts. The Commission is seeking to provide for the proposal to go through a different process, that is, the delegated acts approach. The Minister stated member states are not completely enthused by this, that negotiations have begun on the proposal and that differing views have been expressed and so on.

This gets to the heart of an issue I often have when we are debating proposals for European Union measures in the committee. There is something of a lack of information for us about what position Ireland is taking in these negotiations. Are we enthused by the delegated acts approach? I assume from the Minister's language that we are not and that we want to opt-in at this stage to be active participants in the negotiation process. However, I am keen for some clarification. What are we going to say about the Irish point of view at the negotiations? Are we going to say that we do not favour the delegated acts approach and that we would prefer the somewhat more cumbersome but none the less more democratic implementing acts approach? Is that fair to say?

Alan Shatter (Dublin South, Fine Gael)
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As many of these instruments are due to be revisited in the not-too-distant future we are not entirely convinced that this procedure is necessary but I am not unduly excited about it either. There is always a degree of concern on the part of member states when the Commission is making proposals of this nature. There might be a little more to it and member states might find that some decisions or something that is perceived to be a mind change might be made without the necessary consultation or engagement and this can give rise to tensions. However, we are happy to engage on this and I believe it is important that we do so. Ultimately, if the overall view of most states was to accept the Commission's proposals I would not lose too much sleep over it either. It is one of these things that we think we should constructively engage in. It will involve some further consultation between the member states.

This is always the difficulty with the procedure we have. We are asking people to opt in to facilitate our engaging in a discussion of an instrument that has not been finalised. That is why the protocol is in place and also so that the Parliament has an opportunity to consider whether we should opt in and engage. It means at the end of the day we would be a party to whatever instrument is accepted. The other side of the coin is that if we do not opt in at the early stage then once an instrument has been finalised we can opt in and there will be some element of discussion we can still be a party to in the development of the instrument, but we would not really be in a position to formally propose amendments to it or to have the full engagement that would be desirable. In the civil law area we are in a position no different to most other member states and there is no detriment to our being engaged. I maintain the balance of advantage is in being engaged in that we make our contribution and we consider the appropriate amendments that might be made. Our intervention may produce a compromise proposal which could be of assistance to other states.

It is one of these strange technical proposals. Clearly, there is need to consider the approach in the context of minor issues. If we are discussing form changing or a new member state joining and becoming a party to an instrument, there is a somewhat over-elaborate structure applied at the moment. It is not efficient and it is time-consuming. An element of what the Commission is proposing makes sense.

Ivana Bacik (Independent)
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I thank the Minister for his full reply. It sounded to me from reading and listening to the Minister's words that this could amount to something of a power grab by the Commission, to use a phrase that has been bandied around a good deal. I take the Minister's point that this is a more technical matter and that it may simply be more efficient. I also take the Minister's point that Ireland will be engaging in these negotiations with an open mind, in other words, there is no set position yet, but I believe in a general way it would be helpful for the committee to know what position Ireland is likely to take in discussions when we are engaging with the Minister on these motions, because obviously that may colour our view on whether we should opt in to begin with.

Alan Shatter (Dublin South, Fine Gael)
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In the case of some of the instruments we have suggested that they are better left as they are until they come up for review. However, there are equally valid views on the other side. There is an extraordinary amount of suspicion that the Commission is always trying to impinge on State powers. Permit me to defend the Commission to some degree. Often what are proposed are common sense administrative measures to make the European Union work more efficiently. Often those who most oppose such common sense measures are the people who constantly complain that the European Union is too bureaucratic and makes life far too difficult unnecessarily for business and everyone else. We need to take a balanced approach and this is not the most serious proposal in the world. We should participate in it with an open mind and in so far as there are issues of concern to colleagues we should play what role we can in producing a mediated agreed outcome.

David Stanton (Cork East, Fine Gael)
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It does not opt in to the discussion about it at present. That is what this is about.

Alan Shatter (Dublin South, Fine Gael)
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Yes.

Rónán Mullen (Independent)
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I welcome the Minister. I wish to bounce something by you, Minister, and it is only because I have the greatest of respect for your mastery of your brief that I am doing so.

David Stanton (Cork East, Fine Gael)
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Through the Chair, please.

Rónán Mullen (Independent)
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I am only doing so because I am sure the Minister has had a chance to consider it to some degree, although perhaps not yet. Senator Bacik's reference to possible power grabs by the Commission brought to mind a recent speech by the Commissioner with responsibility for justice affairs, Viviane Reding, who is flagging the issue of whether the Commission and the Court of Justice of European Union should be given more power to protect the rule of law in member states by bridging the gap, as she put it, between the infringement proceedings currently possible and the suspension of member states' rights. Does the Minister have any views on that speech? She appeared to be citing instances in France, Hungary and Romania as evidence that the rule of law may not always be present to a degree that might require intervention, if right was right, by European Union institutions. However, some people see that as a tendency towards a powers grab by the Commission. Does the Minister have any thoughts on that?

Alan Shatter (Dublin South, Fine Gael)
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We are now straying widely from the two issues we are dealing with, but I have no difficulty with that.

David Stanton (Cork East, Fine Gael)
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A brief response, please.

Alan Shatter (Dublin South, Fine Gael)
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I know Commissioner Reding's views on these issues. She delivered an interesting and thoughtful speech in this area. There is an issue within the EU which is of some importance, that is, when new member states seek to join there are, rightly, various conditions to ensure that the rule of law is respected in those member states, that the courts are fully independent and that there is no Government interference with judicial independence.

Commissioner Reding's point is that these are standards we correctly impose on new applicants to the European Union and that we should not, within the Union, assume that everything is perfect within our own member states, that the Union is based on certain standards and values and that it is important that each member state protect those standards and values.

To take Hungary as an example, concerns were expressed about certain changes being made to the Hungarian Constitution which allegedly could have impacted on the independence of the Hungarian court system. I will not comment on that one way or another but Commissioner Reding intervened and produced a result. She has proposed that there be a rule of law oversight in the context of the functioning of the law within European Union countries to ensure that the principles we require of others who join are adhered to within the Union. This is central to the European Union. It is not simply an economic union but one which respects certain values and fundamental rights and the concepts of freedom and justice. I support the approach that Commissioner Reding has taken. She has created a very important and useful debate in this area, which has made all of us within the Union, who can easily be critical of others, look inside our own cupboard and examine whether everything we do is done in a manner that upholds fully the values that we urge on others.

David Stanton (Cork East, Fine Gael)
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I thank the Minister.

Rónán Mullen (Independent)
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We might return to this at some stage.

David Stanton (Cork East, Fine Gael)
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Indeed.

Rónán Mullen (Independent)
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That is how proposals gather momentum.

David Stanton (Cork East, Fine Gael)
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I want to get back to the two motions in question I call Deputy Marcella Corcoran Kennedy.

Alan Shatter (Dublin South, Fine Gael)
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There is one thing I should clarify because we are dealing with two different issues. The more technical issues that I discussed with Senator Bacik would involve the council and parliament but the patent arrangement is by way of an international agreement so it does not formally involve the council and parliament although it does involve 25 EU member states. Technically we are dealing with both together.

Marcella Corcoran Kennedy (Laois-Offaly, Fine Gael)
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Thank you. My question relates to Senator Bacik’s question about the delegated Act. Can the Minister give an example of the type of instrument that would be considered for delegation? If we opt in but decide that we are not going to support this measure can we opt out or what happens there?

Alan Shatter (Dublin South, Fine Gael)
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No, we have a few choices. We opt in and if there is a final outcome we are part of it, or we do not opt in which means we cannot formally propose amendments to it and when it is decided in its final form we decide whether we should opt in to it as it is, warts and all, even if there are parts we do not like and on which we might have had a greater impact had we participated. That is why it is important to opt in, to exercise our influence.

In response to the question about the difference between a delegated Act and an implementing Act, the Lisbon treaty introduced two new articles - I mentioned this briefly earlier - that allow the member states and the European Parliament to delegate powers to the European Commission. These articles effectively replace the old comitology procedures, which were often criticised for lack of transparency.

The articles in question are 290, which provides for delegated Acts and 291 which provides for implementing Acts. I should add that, while the procedures are separate and distinct, there is a certain overlap so that in many cases there would be a margin of discretion in respect of the choice made as to which approach is to be followed. Given the newness of the procedures it is also the case that the parameters of each are still not altogether clear – this is about as clear as mud because these are relatively new procedures. That being said, in broad terms, Article 290 of the TFEU allows the European Legislature, that is the European Parliament and the Council, to give powers to the European Commission to amend or supplement legislative Acts.

These powers are limited in nature. They are not intended to enable substantive amendments to be made to a basic instrument. A common example where such amendments might occur arises in relation to changing the content of forms - I gave that example earlier – in respect of particular matters. The forms are normally annexed to a regulation. A form might facilitate the practical operation of some particular measure or provision contained in the regulation and it may be discovered after the regulation has been adopted that there is some defect in the form, that it could be better framed and that it would be in the interests of those who have to utilise it that it was better framed. In that context the Commission can be given delegated authority. It cannot affect the substance of the regulation but it can provide for a better form.

I could give a domestic example of this, one of the bees in my bonnet for several years was the incomprehensibility and difficulty that confronted those who apply for citizenship in Ireland when presented with the forms. People came into my law office asking me to help them fill out the forms. As a lawyer I found some of the questions obscure and difficult. When I went into the Department I discovered that 50% of the forms submitted on citizenship applications were returned because of failure to fill them in or because there was some part that someone did not understand. Several people in the Department were engaged in checking forms and sending them back to people, rather than processing applications.

David Stanton (Cork East, Fine Gael)
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Excuse me, Minister, I want to remind Senators, there is a division in the Seanad, for any Senators who wish to vote.

Alan Shatter (Dublin South, Fine Gael)
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One of the first things we did was to change all the forms. It did not require any legislation. The legislation was still the same citizenship legislation but the forms were amended to make them more comprehensible and simple. This is an example of what we are talking about when we say that we do not and should not need to have a consultation with the European Council and the European Parliament to change forms which are on an appendix or an annexe to a regulation.

Anne Ferris (Wicklow, Labour)
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I agree, and welcome the fact, that the patents issue will save money and time. Why is it necessary to have a referendum to ratify the UPC? If the Minister is presenting this to us today and informing us about it, and it is a no-brainer as far as I am concerned, why would there be a need for a referendum?

Alan Shatter (Dublin South, Fine Gael)
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It would be an international agreement initially. An international agreement is not automatically part of our domestic law. Our courts system is provided for in the Constitution. One of the key articles is Article 34. What we would effectively do by becoming a party to this is agreeing that a litigious matter in the courts that is currently part of the exclusive jurisdiction of our High Court be transferred to another court that may not even sit in this country. Due to the way the Constitution is formulated even the agreement by unanimous vote of every single Deputy and Senator cannot effect a change in the Constitution. The exclusive jurisdiction granted to the High Court in these matters will have to be amended in a referendum by people agreeing that patent issues can be determined in the European Patent Court.

Anne Ferris (Wicklow, Labour)
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Is this the only country that would have to have a referendum?

Alan Shatter (Dublin South, Fine Gael)
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I do not know. We think Denmark may but I am not entirely sure.

We require to have it because of the way it is framed under our constitutional system.

Anne Ferris (Wicklow, Labour)
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I thank the Minister.

David Stanton (Cork East, Fine Gael)
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The Minister said there are 25 member states involved, which means three are not. Which countries are they and why are they not involved?

Alan Shatter (Dublin South, Fine Gael)
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Spain, Italy and Portugal are not participating.

David Stanton (Cork East, Fine Gael)
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Do we know the reason?

Alan Shatter (Dublin South, Fine Gael)
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They have their own reasons.

David Stanton (Cork East, Fine Gael)
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Okay.

Alan Shatter (Dublin South, Fine Gael)
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From a business perspective this would be a huge advantage to the major multinational companies here, and particularly to some of our smaller domestic companies engaged in very important research. The bigger ones can cope with the additional expense involved but the smaller ones being able to register a patent in one location, which applies across 25 European Union countries, is very advantageous.

David Stanton (Cork East, Fine Gael)
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I assume there will be a sub-office of the European Patent Office in this jurisdiction or is one already established? How will that operate? Will the Irish Patents Office cease to exist or what is the position?

Alan Shatter (Dublin South, Fine Gael)
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What I understand will happen is that the Irish Patents Office will still exist in the context of Irish patents but a patent will be processed through the European Patent Office. If one lodges it in the Irish Patents Office, that is all one needs to do.

David Stanton (Cork East, Fine Gael)
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Will we see instances of this specialised patent court sitting in this State?

Alan Shatter (Dublin South, Fine Gael)
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Where it will be located is one of the issues yet to be dealt with. Some of the procedural issues are yet to be finalised.

David Stanton (Cork East, Fine Gael)
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What about the owner of a smaller business who may not be able to travel to Brussels or wherever? It would be more convenient if it could have a sitting in this State.

On the other one, 160 Acts are mentioned in addition to the five that are of concern. What is the view of the United Kingdom on these issues? Do we know what they have decided to do because we must be cognisant of what they do?

Alan Shatter (Dublin South, Fine Gael)
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They have not come to a decision yet as to whether they will opt into this. I do not know the answer to that question. They will make their own decisions as they deem appropriate. They do not always approach these issues from the same perspective as we do.

David Stanton (Cork East, Fine Gael)
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That is it. The Minister's voice held up. I thank him very much for attending.