Thursday, 24 March 2011
EU Regulation on Judgments in Civil and Commercial Matters: Motion
I welcome the Minister of State, Deputy Fitzgerald, and I wish her well in her term of office as Minister with responsibility for children. We will now deal with a motion regarding a regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
That Seanad Éireann approves the exercise by the State of the option or discretion under 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, to take part in the adoption and application of the following proposed measure:
Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast),
a copy of which was laid before Seanad Éireann on 10 January, 2011.
I thank the Leas-Chathaoirleach for his congratulations, which I appreciate. This amends an existing proposal that sets out jurisdiction rules that apply in international cases involving mainly EU citizens. On behalf of the Minister for Justice and Law Reform, I thank Senators for agreeing to deal with this matter at short notice and within a very tight timeframe. Their co-operation in this matter is very much appreciated and it is to be hoped it will ensure Ireland can play a full part in the negotiations, which have just begun, on this very important instrument.
The Commission has sole right of initiative on legislative proposals in the civil justice area and the timing of the presentation of such proposals is within their hands. This proposal was presented just before Christmas. Its 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 terms of the protocol which we share with the United Kingdom, whereby we have three months to exercise our option to take part in the adoption and application of relevant measures, apply. We have been informed that the three month period will expire on 4 April, hence the reason for bringing the matter to the Seanad and the Dáil. Accordingly, if we are to exercise our option within the required timeframe, it is necessary to obtain the prior approval of both Houses of the Oireachtas before that date. Given the intervention of the general election, it was not possible to deal with the matter until now.
Senators will be familiar with the procedure for protocol measures since a large volume of proposals which attract the provisions of the protocol have come before the House in recent years. In the civil area alone more than 20 such proposals have been considered by the House and this is testimony to the volume of activity in this area. It should perhaps be noted that this proposal is the first civil law measure to be presented since the Treaty on the Functioning of the European Union entered into force. However, given that the Commission has very ambitious plans in this area, it is likely to be the first of many such measures in the coming years.
The essence of the proposal is captured by its somewhat unwieldy title which points to the fact that it is concerned with court jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It is important to note that the proposal is only concerned with international cases which, at its simplest, would be reflected in the fact that the plaintiff and defendant are located in different member states. It is also important to note that the purpose of the proposal is merely to introduce certain amendments into its parent regulation, commonly referred to as Brussels I.
The amendments arise from a process of consultation which was launched by the Commission in April 2009. Arising from that consultation, it became clear that there was scope for improving the operation of the Brussels I regulation which has been in force since March 2002. That proposal was presented in September 1999 and at the time Ireland exercised its right to opt in to its adoption and application. Our timely participation in the parent instrument underlines the vital importance of our participation in its successor. This is especially the case as we have no particular difficulties with the proposal made and it would be unfortunate if our failure to opt in were to be misconstrued as in some sense being a manifestation of hostility to its content. Failure to opt in would also run contrary to the commitment we have given to take part in relevant measures in the justice area to the maximum extent possible.
The original Brussels I regulation is the primary instrument governing the recognition and enforcement of civil and commercial judgments within the European Union. It provides a degree of certainty on which court in which member state will take jurisdiction in an international case. That is important. It also provides a mechanism enabling judgments given in one EU member state to be recognised and enforced in each of the other member states. In essence, what that means is that such judgments, when they go through an enforceability process, can be enforced in a member state as if they were judgments which had originally been given in the member state.
There is considerable history attaching to the proposal which is the subject of this debate in that, before the Brussels I regulation was adopted, these matters were governed by a convention which dated from 1968 and was ratified by Ireland in 1988. Participation in the new instrument is part of the progression towards making access to justice easier and more efficient for all citizens which, in this context, includes consumers, economic operators and individual litigants in a wide variety of contexts.
The original Brussels I regulation is widely viewed as being a seminal instrument in the area of judicial co-operation in civil matters. The new proposal is essentially an add-on to the existing proposal and, as I indicated, preliminary examination does not suggest it gives rise to particular difficulties in so far as Ireland is concerned. The intention underlying it is to simplify further the recognition and enforcement regime for judgments in the civil and commercial area. This has the potential to be of particular benefit to the business community as studies suggest the complexities attendant upon cross-border litigation are a significant disincentive to doing business in another jurisdiction.
It is the case that, under the protocol, we may accept a proposal any time after it has been adopted. However, it is our considered view that early opt-in to the discussions will maximise our ability to influence the shape of the final outcome. It will give us voting rights and enable us to participate in alliances with like-minded member states in the event that this becomes necessary in order to defend a particular policy stance. It will also confirm our commitment to continued participation in a regime which has been operating successfully in this jurisdiction for more than 20 years.
I will deal briefly with the key elements of the new proposal. The first and most important element involves the abolition of a procedure known as exequatur. What this involves is a procedure whereby a declaration of enforceability is required before a judgment given in one member state can be enforced in another. In Ireland, a declaration of this kind is obtained by way of application to the Master of the High Court. Commission figures suggest that within the European Union the overall cost of exequatur proceedings amounts to more than €47 million per year. Its analysis also suggests the time for obtaining a declaration of enforceability can vary considerably from member state to member state. The costs and time involved in obtaining such a declaration are perceived to be inimical to the proper functioning of the Internal Market and present a real barrier to doing business within the Union.
It is recognised that the abolition of exequatur carries with it certain risks and, for that reason, a number of remedies to protect the rights of the defendant are envisaged. These include the right to contest a judgment in the member state of origin if the defendant has not been properly informed about the original proceedings in that state. Also included is the right to contest any other procedural defects that may have arisen before the court of origin and which may have infringed the right to a fair trial.
Another element of the proposal relates to the operation of the Brussels I regulation within the international legal order. Clearly, this is a matter of some delicacy since it involves relationships with third countries. What is proposed is that the jurisdiction rules of the regulation should be adjusted in order that jurisdiction in regard to defendants from outside the European Union would no longer be governed by national law but by specific rules set out in the regulation. In addition, the courts of a member state would have a certain discretion to stay proceedings in a case where a non-EU court was already dealing with the same case.
The proposal also attempts to improve the effectiveness of choice of court agreements in order that the court chosen by the parties to resolve the dispute will always have priority to decide on its jurisdiction, even where one of the parties seises another court first in time in an effort to avoid compliance with the original agreement. The provision has been designed to ensure it will not interfere with the future ratification of a Hague Convention which also deals with choice of court agreements. In this way, it is envisaged that the widest possible respect will be given to international choice of court agreements which are often an important tool in the formulation of international commercial contracts.
The proposal also contains provisions designed to improve the interface between the regulation and arbitration by providing that a court seised with a dispute involving an arbitration agreement would have to stay proceedings if an arbitral tribunal or a court at the seat of the arbitration was already seised of proceedings to determine, as its main object or as an incidental question, the existence, validity or effects of that arbitration agreement. This is intended to enhance the effectiveness of arbitration agreements in Europe and eliminate the incentive for abusive litigation tactics.
There are other minor elements designed to facilitate co-ordination between courts and the circulation of provisional and protective measures. However, the four elements I have outlined represent the key amendments that are being proposed in regard to the new regulation.
The technical negotiations on this proposal commenced in early February and the first reading has yet to conclude. It is too early at this stage to say when the negotiations will reach finality. By and large, member states seem to be of the view that the Commission has done a good job in presenting a well-balanced text which is likely to be of general benefit. Inevitably, however, the negotiation process is likely to reveal diverging views on some aspects of the proposal, and this underlines the need for us to be in a position to make common cause with those member states whose perspective most accords with our own.
It should be emphasised, lest there be any doubt on this point, that opting in to the proposal at this time does not mean we necessarily agree with every aspect of it. The opt-in process merely ensures we can be active participants in the negotiation process, and this carries with it the right to make proposals to alter the text should that seem to be desirable.
Ireland has taken a very positive approach to participation in the various civil law instruments that have been presented. These instruments range over matters as diverse as the service of documents in judicial proceedings, the taking of evidence in such proceedings, small claims procedures, mediation, legal aid and maintenance. It is a mark of our commitment to the EU project that we tend to be very positively disposed towards participation in such projects from the outset. Certainly, we are very positively disposed towards participation in this particular project which has the capacity to enhance legal certainty for individual litigants across the EU. I commend this motion to the House.
I welcome the legislation, which deals with the functioning of the European Union protocol and issues relating to fair trial procedures and court issues. It is on that point that I wish to focus. I have attempted to address some issues pertaining to my membership of this House with procedures such as these.
I have the right to speak freely, as I wish to, on the motion before the House. As a public representative, I have had many dealings with issues of this nature. I have carried out my duty to the best of my ability. Many decisions with which I have been associated over the past 25 years have concerned issues associated with the European Union and my constituency. I have no doubt that I have made mistakes but, hand on heart, I thought what I was doing was always right for the country. It would be dishonest of me at this point not to indicate that I did not seek re-election to Dáil Éireann, nor could I seek election to Seanad Éireann, mainly due - this relates to court proceedings - to allegations, processes and proceedings.
-----on numerous occasions I asked you to refer to the motion before the House and you did not do that. I had no choice but to suspend the sitting. Before I did so, I asked you to resume your seat and you did not do so. I now call on Senator O'Toole.
I will not go into the detail of that. The Cathaoirleach outlined to you in the House earlier today that you were making a personal statement that had nothing to do with the motion before the House. I have called on Senator O'Toole and I am giving you a last chance-----
I have no choice in this matter. Senator Callely will not resume his seat and allow Senator O'Toole to make his contribution. I have indicated that Senator O'Toole should make his contribution. Senator Callely has brought the House into disrepute.
I do not wish to proceed in this fashion. I have always respected the House. I wish to ensure that every Member, regardless of who he or she is, has an opportunity and is afforded the opportunity to speak. I will resume my seat on the understanding that what I have read into the record is on the record of the House and that any additional speaking time I am due will be afforded to me at a later stage.
The House will applaud her appointment and elevation. She did trojan work as Leader of the Opposition in the House for the past four or five years. I wish her well. We have the utmost confidence in her.
This is the type of change in Europe we need to welcome. It is a tidying up and reduction of bureaucracy. It is a recognition by various countries of each other's court systems. It undermines the attempt by people to play off against each other the court systems of various countries . It is very much to be welcomed. What are to be welcomed even more are the fail safes, conditions and protections included in terms of ensuring the right to contest procedural defects can be dealt with and making particular arrangements for people outside the EU.
I very much welcome this legislation and I ask the Minister to take any opportunities that arise to speak about it as it is about how being part of Europe makes life easier. When people speak about the straight banana, this is the other side of the argument. I support the motion and I wish the Minister well.
I support the motion and I support the Government's attempt to exercise the option prior to 4 April. It is important to enter the necessary negotiations to ensure the instrument is as effective as possible. There are two areas in particular where we need to take care that what is eventually agreed is in our national interest and works in the interest of all members of the European Union. We want to ensure we cannot be backed into situations under civil law whereby the Houses of the Oireachtas are left behind and not involved in discussing the policy aspects of what is eventually agreed. There must be a mechanism to ensure this does not happen.
We also need to ensure when seeking alliances with other countries and exercising this instrument that we do not pick the wrong fights and that we do so for the right reasons. I am led to believe the recent court decision with regard to crucifixes in Italy involved Malta and may also have involved Ireland. I would not have seen that as a wider European issue to be discussed at such a level using an instrument of this type. It should have remained a matter of national competence. This is why we need to be careful and give the Government every confidence in ensuring the negotiations and the improved instrument to be eventually agreed is one that works for Ireland and for the European Union.
I commend the motion to the House. This legislation was drawn up originally outside the European Union framework under the Brussels Convention of 1968 under the aegis of the Council of Europe. Subsequently, it was adopted as a regulation following the Amsterdam treaty and it is very important legislation. Many judgments have been made at European and national court level on the matter in the interim period and it has been extremely important, particularly in the commercial sphere where a person trading with another member state can seek to have litigation dealt with in his or her jurisdiction. It has saved much in costs for many companies and it makes it possible to do cross-border business with much greater ease. The various judgments of the European Court of Justice inform the amendments and improvements envisaged.
The Minister outlined four main areas, including the declaration on enforcement, which is surplus to requirements. The issues of dealing with the jurisdiction with regard to third countries as distinct from European member states and that where parties agree by contract that a particular jurisdiction should apply are to be respected. Another matter is clarification on arbitration. I have no hesitation in recommending this resolution. Ireland should play its full part in this area. We secure major benefits from this type of legislation and it is important we are involved in the negotiations at the beginning.
I welcome the Minister to the House. I am delighted with her appointment as she will be an excellent Minister with responsibility for children and it is a well-deserved appointment. I am sorry there are not more women in the Cabinet, but Deputies Burton and Fitzgerald will be really excellent in their respective briefs and I am delighted they are Ministers. I am sure the children's rights referendum will be prioritised to a much greater extent under Deputy Fitzgerald's stewardship than it was previously and this is crucial.
I also welcome the motion and the Minister has put the case for an early opt-in very well. It is clear there is a volume of activity in this area and that it is important to ensure greater certainty for litigants across the European Union. Of course, this is not about the harmonisation of legal procedures because as the Minister pointed out, it only applies to international or transnational cases with an international dimension. However, it will reduce the cost and time taken to do business and thus ensure the conduct of business benefits.
I welcome the commitment in the programme for Government to devote a full week each year to debating major EU issues of concern. I suggest the week commencing 9 May, Europe Day, would be appropriate, given the volume of EU directives and decisions coming before us. It is important that we take a step back once a year to consider the different themes and measures coming from the European Union.
Let me briefly remark that Senator Callely behaved outrageously this morning. Lest the silence of any Member be-----
I thank all of the Senators who contributed to the debate on the motion. The point has been made that it will have very practical consequences and lead to greater efficiency which will be to the benefit of all citizens. The timely exercise of our right to opt in to discussions at this time will maximise our ability to influence the shape of the outcome of the negotiations and confirm our commitment to continued participation in a framework which works well and in which we have participated for more than 20 years. An early opt-in does not mean we accept all elements of the Commission's proposals, but it strengthens our hand in terms of further policy proposals at a later stage. I appreciate the positive attitudes expressed towards the proposition that this is an instrument in which Ireland should participate from the beginning. As a number of Senators observed, it is important in this regard that the deepening of co-operation in civil matters within the European Union takes place on the basis of proper analysis and scrutiny.
I appreciate that time was made available by the House at short notice to agree to the motion.