James Browne (Wexford, Fianna Fail) | Oireachtas source

I move:

That Dáil Éireann, having regard to Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and noting that a copy of the following proposed measure was laid before Dáil Éireann on 6th January, 2022: Proposal for a Directive of the European Parliament and of the Council amending Council Directive 2003/8/EC, Council Framework Decisions 2002/465/JHA, 2002/584/JHA, 2003/577/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA, 2008/947/JHA, 2009/829/JHA and 2009/948/JHA, and Directive 2014/41/EU of the European Parliament and of the Council, as regards digitalisation of judicial co-operation, approves the exercise by the State of the option or discretion under the said Protocol No. 21, to accept, in the event that the foregoing proposed measure is adopted by the Council pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union, the measure so adopted.

I thank Members for their willingness to deal today firstly with the question of Ireland’s participation in the e-CODEX regulation on a computerised system for the cross-border electronic exchange of data in the area of judicial co-operation in civil and criminal matters; secondly with a proposal for a regulation of the European Parliament and of the Council on the digitalisation of judicial co-operation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial co-operation, in other words, the digitalisation regulation; and thirdly with the digitalisation directive regarding the digitalisation of judicial co-operation. The three proposals are related to each other and are being put before the House today in that context. Scrutiny of these proposals is important in its own right and is a necessary step in facilitating the moving of the motions in both Houses of the Oireachtas, which will enable the opt-in to the measures to be exercised.

Digitalisation of justice is a central focus for the European Commission. The use of digital channels for communication in cross-border judicial proceedings will facilitate judicial co-operation in civil, commercial and criminal matters. Therefore, the legal bases for these initiatives are Articles 81(1) and 82(2) of the Treaty on the Functioning of the European Union. The e-CODEX regulation and the digitalisation proposals will facilitate electronic communication between member states in cross-border judicial proceedings and will be vital to the exchange of documents in certain types of criminal and civil cases. Participation will be essential to Ireland’s co-operation in such matters in future. Participation will ensure the availability and use of electronic means of communication in cross-border cases; ensure that documents are not refused or denied legal effect solely on the grounds of their electronic form; and ensure the validity and acceptance of electronic signatures and seals in the context of electronic communication in cross-border judicial co-operation and access to justice.

The e-CODEX regulation was adopted in May 2022 and is already in operation. While the digitalisation proposals are still under examination, it is envisaged that they will be adopted later this year. The e-CODEX regulation and the digitalisation proposals are closely related and it is proposed that they be dealt with together for reasons of context and convenience. What I am proposing in respect of the digitalisation proposals is to undertake the required procedures at this time in order to facilitate Ireland’s opt-in immediately on their adoption. The approach proposed will give a clear signal of our wish to engage positively with the digitalisation process, and will facilitate our early involvement with this project. Members may be wondering about the appropriateness of bringing these proposals before the House today and undertaking the opt-in processes in advance of their adoption. Legal advice has been taken on that point. That advice is that there is no legal or constitutional impediment to such a course of action.

The digitalisation proposals are omnibus measures which apply to or affect a variety of EU instruments. Members will have noticed that the digitalisation proposals either apply to, or affect, a number of EU instruments in which Ireland is not participating by virtue of Protocol No. 21. Ireland is not participating in six of the affected legal acts; three civil and commercial instruments and three criminal measures. I can assure the House that legal advice has also been obtained in relation to this matter and officials of the Department have engaged extensively with the current Presidency, Sweden, with the European Commission and with the relevant legal services of the EU institutions. I am satisfied that both the European Commission and the Council legal services have confirmed that opting in to these omnibus proposals does not commit Ireland to participation in EU legislation with which we have opted not to engage.

Turning to the measures themselves, I propose to deal firstly with the e-CODEX regulation. I can inform the House that e-CODEX stands for e-justice communication via online data exchange. The regulation sets out that eu-LISA, the EU agency for the operational management of large-scale IT systems, will manage the e-CODEX system from later this year, taking over from the consortium of member states and other organisations such as the European Chamber of Legal Professionals which began developing it in 2010.

E-CODEX provides for secure electronic communication in some cross-border civil and criminal proceedings between citizens and courts, and between member state administrations. It does this by means of various access points in member states. These access points can securely exchange electronic messages with each other directly over the Internet using a set of common IT standards or protocols. The system also allows for the exchange of documents using standard digital forms. To date, e-CODEX has been used by at least ten member states in a range of pilot programmes. These pilot programmes have included proceedings relating to the European small claims procedure, the mutual legal assistance procedure in relation to criminal matters measure and the mutual recognition of financial penalties measure.

The e-CODEX regulation seeks to move the governance and management of the operation of the e-CODEX system from the ad hocconsortium to eu-LISA later this year. Further to this, the regulation sets out the composition of the e-CODEX system, the responsibilities of the European Commission, of the member states, of eu-LISA and of national entities which may be managing access points, which are entry points to the secure system via which information will be exchanged directly. The regulation also provides for the establishment of a committee of member states to assist the European Commission in relation to a number of matters regarding the operation of the system. Ireland cannot participate in meetings of that committee or attend as an observer until such time as a formal opt-in takes place, leaving us without any influence on it. Similarly, Ireland cannot participate in the e-CODEX advisory group or the e-CODEX programme management board, both central structures established by the regulation within eu-LISA to support and oversee the system.

I will turn now to the other measures before us. There is a proposal for a regulation on the digitalisation of judicial co-operation and access to justice in cross-border civil, commercial and criminal matters, which amends certain Acts in the field of judicial co-operation. There is also a proposal for a directive amending various directives and framework decisions as regards digitalisation of judicial co-operation, which I will refer to as the digitalisation regulation and the digitalisation directive, respectively, or jointly as the digitalisation proposals.

In practical terms, the effect of the application of the proposals will ensure that electronic means of communication are both available and used in cross-border cases between member states' judicial and other competent authorities, including the relevant justice and home affairs agencies and EU bodies, where such communication is provided for in EU legal instruments on judicial co-operation.

In addition, and without interfering with the courts' powers to decide on their validity, admissibility and probative value as evidence under national law, it is envisaged that documents will not be refused or denied legal effect solely on the grounds of their electronic form. The proposals also have positive implications for the validity and acceptance of electronic signatures and seals in the context of electronic communication in cross-border judicial co-operation and access to justice.

In addition, they are related to the 2020 recast regulation on the service in the member states of judicial and extrajudicial documents in civil or commercial matters, and to the 2020 recast regulation on co-operation between the courts of the member states in the taking of evidence in civil or commercial matters, under which use of e-CODEX is mandatory with effect from 1 May 2025. Ireland is already participating in both of these regulations and their mandatory use of e-CODEX makes Ireland's participation in the e-CODEX regulation all the more significant. As set out above, given the central role of e-CODEX in the digitalisation proposals, for reasons of context, consistency and coherence, we should now participate in the full suite of measure concerning e-CODEX.

In conclusion, I thank the House for making the time available to deal with these matters. I look forward to the comments of Members. I will be happy to address any questions they may have.

See this speech in context